The 5th Circuit recently and issued an opinion favorable to the idea of employers negotiating with employees in FMLA situations. ( D’Onofrio v. Vacation Publications, Inc.) Although the case was reversed in part and remanded back to District Court on other issues, it ruled that allowing an employee to take FMLA leave with part-time pay did not interfere with the FMLA rights of the employee.
The employee approached her employer requesting leave under the FMLA because of her spouse’s severe injuries and was offered two options. She could go on unpaid FMLA leave or she could do part-time work for pay. She chose the latter, but after things went south, alleged that the arrangement constituted illegal “interference” with her FMLA rights. The 5th Circuit ruled 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)
Should you wish to accommodate employees in this manner under the FMLA, consult your attorney to ensure that you have complied with the law.