The Risks and Rewards of Allowing Employees to Work During FMLA Leave

The Family & Medical Leave Act ("FMLA") grants employees leave in certain enumerated situations. The Fifth Circuit Court of Appeals recently held it also allows the employee and employer to strike an agreement that the employee will perform certain duties and responsibilities during the leave and receive compensation for it without creating an actionable interference claim under the FMLA.

Karen D'Onofrio sued her former employer, claiming the work she did during her approved FMLA leave amounted to an interference with her right to take leave. The Court disagreed. "Giving employees the option to work while on leave does not constitute interference with FMLA rights so long as working while on leave is not a condition of continued employment."

In D'Onofrio's case, she had been granted her full leave under the FMLA and offered continued commissions on her book of business, if she wanted to check and return emails and phone calls and provide related customer service support to her customers. She agreed to this arrangement. However, for reasons she attributes to technology problems, she did not perform the work and thus lost computer access to her accounts. D'Onofrio took that to mean she was terminated and she later brought suit. Her FMLA claim was dismissed because the work she agreed to do was not a condition of her continued employment for the company.

The takeaway is employees and employers in the Fifth Circuit can consider work during leave, so long as the agreement to do so does not become a term and condition of future employment. While this may not be suitable for every employer, it may be an option where certain tasks, such as customer support, can be done remotely. This may be attractive to the employee as well as it allows employees to earn some form of compensation to ease the sting of an unpaid leave. Of course, what arguably could have worked in D'Onofrio's situation did not because of alleged technology problems. On the flipside, the arrangement seemed well-suited for work while on leave given the limited nature of the customer support duties and commissions as a form of compensation for that work.

If this is something your company would like to explore, use it with caution so that there is no question the work was voluntary and an employee's leave is not conditioned on it. Moreover, working remotely for any reason can raise a host of wage/hour issues. In most cases, remote access is discouraged for non-exempt personnel, given the threat of off-the-clock claims, time records issues and the like. These opportunities may be better suited to FLSA-exempt staff as long as the temporary arrangement is not considered a change in the person's status (i.e., salaried to hourly). The company certainly does not want to lose an exemption over this. The best practice is to spell out the expectations and compensation in a written agreement and allow both sides the right to terminate the temporary leave work arrangement without it having any effect on the underlying leave.

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