FMLA - Can't work longer than 8 hours

HR Jones

[font size="1" color="#FF0000"]LAST EDITED ON 03-29-07 AT 03:17PM (CST)[/font][br][br][font size="1" color="#FF0000"]LAST EDITED ON 03-29-07 AT 03:17 PM (CST)[/font]

We currently have an employee who provided a certification form for FMLA from his health care provider, which states that he cannot work longer than 8 hours/day. However, he is part of a bargaining agreement that says he must work forced overtime in certain situations.

To make things more difficult, his job description states that he "May work 16 consecutive hours." So if an employee is on short-term disability or worker's comp, our practice has been to not allow an employee to return to work until they don't have any restrictions (including they must be able to work 16 consecutive hours).

Has anyone else had this type of situation? How did you handle?

Irie

I had a similar situation with an employee who could not work longer than eight hours in a day. Since overtime was an essential function of his job the overtime that he did not work was counted as FMLA time. Of course we had the medical certification to document this.

If he had run out of FMLA then we would have looked at ADA for a possible accommodation provided that his condition was a bona fide disability.

davids

It seems reasonable that if the job requires the employee to work 12, 14 or 16 hours a day, and the employee can only work 8, that you would charge the hours that he/she is unable to work towards FMLA. However, the flip side of that is the question of how many hours of FMLA is the employee entitled to.

I recently participated in a webinar on intermittent use of FMLA. The question came up regarding how you track hours of employees who work variable schedules, including extra hours. The attorney who presented the material took the approach that the employer should calculate the average weekly hours worked during the prior 12 weeks and use that figure to determine how many hours of FMLA the employee was entitled to. So, as an example, if the employee averaged 42 hours per week, he/she would be eligible for 504 (12 x 42) hours of FMLA, not the standard 480 for a full-time employee. IF the attorney is correct that this is the appropriate way to calculate hours, your employee may be eligible for significantly more hours of FMLA.