Employees who take leave to care for a family member often have the ability to continue working during their leave if the caretaking obligations do not consume all of their time. If the employee asks to work limited hours while taking time off to care for a family member that is generally treated as a request by the employee for reduced schedule or intermittent leave. But what happens if the employee requests a continuous leave and the employer tells the employee she can continue working a limited schedule if she wants to? What if the employee interprets the “offer” as a “request?” This issue was recently addressed by the Fifth Circuit Court of Appeals in D’Onofrio v. Vacation Publications (5th Cir. Apr 23, 2018).

The case involved a sales representative who requested FMLA leave to care for her husband. It turns out that was not the real reason for the employee’s leave. Her husband acquired a franchise for a competing business and Ms. D’Onofrio requested the FMLA leave so that she could attend the training program. At the conclusion of her “leave” she was planning to go work with her husband. When Ms. D’Onofrio requested her FMLA leave, the Company believed it was a valid request for leave and offered her two options: (1) she could go on unpaid FMLA leave or (2) she could log in remotely a few times per week and continue to service her existing accounts so that she could keep the commissions from those accounts while on leave. She chose the latter option.

Shortly after the leave began the Company learned Ms. D’Onofrio was not responding to emails and voicemails. The Company decided to bring the clients in house and Ms. D’Onofrio was locked out of her company accounts. She also learned that the Company sent an email to clients stating she was no longer working there. Unbeknownst to Ms. D’Onofrio that email was sent in error. When the Company e-mailed her that her FMLA leave expired Ms. D’Onofrio responded that she was not returning because she believed that she had been terminated.

Among other claims Ms. D’Onofrio alleged that her FMLA rights were interfered with because her employer asked her if she wanted to work during her leave. The Court held that “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.” (Emphasis added). The Court noted that the FMLA permits voluntary acceptance of work by employees on medical leave, but an employer may violate employee’s FMLA rights by coercing her to work while on leave. In this case there was no evidence of coercion and the Court found there was no interference.

While this case did not present a surprising outcome given the facts before the Court, it emphasizes the need for caution when having a discussion with an employee taking leave about performing any work during that leave. If an employer is going to offer the employee the ability to continue working, the employer must document that discussion and emphasize that it is completely voluntary. The employee should sign an acknowledgment that he/she is choosing to work voluntarily and without coercion. Additionally, if the employee chooses to work while taking leave, the employer should give the employee the option to change his/her mind and opt out of the agreement to continue working.