If he is able to work and they have no position for him to work, he's free to file for unemployment benefits and see what happens. The employer may not be too happy about it and may choose to contest the benefits, arguing he's "unable" to work.
"... or work temp clerical jobs (which ever comes first) until his foot heal?"
He's free to look for other work, of course. The employer is evidently choosing to allow him to take advantage of FMLA when it doesn't have to.