Who decides on PT return to work ?

We have an employee who wants to return from FMLA leave on Part-Time status (she used to be full-time). She will need to be on PT status for 1-2 weeks, before being able to return to FT status. Are we withing our rights to tell her we need her to return on FT basis only? The boss doesn't want her back unless she can be FT.

And are there any complications/ramifications with regard to ADA that we need to be aware of as far as requesting her return be FT?

Thank you.

Comments

  • 12 Comments sorted by Votes Date Added
  • I don't think the employer is under any obligation to permit a f/t ee to work p/t for 1-2 weeks...however, if the doctor is not saying that she's ready to come back f/t, unless her 12 weeks have expired...you may be without her for an additional 2 weeks...which is more important to your business?
  • Denise,
    Thanks for your reply. The ee still has about 8 weeks left of FMLA leave available to her. I told her she needs to get a return to work note -which needs to specify the "medical necessity" for her to work only part time (and specifiying the # of hours) for the time being. If her doctor cannot confirm this medical necessity, then this is obviously very clear cut. But if he does, are we then bound by it?

    And since she is still unable to drive, plus other things, I am concerned she may have protection for this accomodation (PT status) under ADA.

    The CEO doesn't want her back on a PT basis, and is not happy about having to comply with FMLA or ADA.

    Any of your additional insights would be much appreciated.
  • I think by requesting information from her doctor about the number of hours (I'd also want a specific list of tasks that she's permitted to do) you're kind of telling her that she'll be able to work p/t.

    Whether or not your CEO is happy about following the law is irrelevant. He must do so, or risk facing discrimination charges.

    If you don't want her back part time...I believe that you are under no obligation to accomodate her request. Howver, when she returns f/t you'll need the same information from her doctor...clearing her to work..and any limitations.

    Have any similar arrangements been made in the past...do you have any written policies that cover returning to work after a medical leave?


  • i disagree that asking about hours is telling her it's OK. Your just getting the info to make an informed business decision.
  • I'm not sure how you think ADA plays into this, unless the person meets the ADA requirements. FMLA does not automatically equal coverage under ADA.

    FWIW, most of our return-to-works from short term disabilities (FMLA runs concurrent to it) come back on a half-day basis for 2 weeks or so. Seems to be recommended by physicians and other health care professionals (including our disability mgmt company) as a way to ease a person back into being productive again after a medical leave. We have always complied as a way to get the person back earlier than what the physician may be willing to support since it's a part-time basis.

    To your question, if the CEO doesn't want her back on a PT basis, then you may be facing an additional 2-week delay in her return to work at all (as Denise indicates above in her note).
  • AJ makes a good point. Why wouldn't part-time be better than no time? Keep in mind that if her not being able to drive is temporary it would not fall under ADA.
  • As AJ suggests, you need to evaluate whether ADA covers this at all. The tests are different for ADA and FMLA.

    If you don't have an ADA accommodation issue, you're probably okay to insist on FT only. Of course, couldn't the employee then return FT, only to start taking intermittent fMLA?

    Brad Forrister
    Director of Publishing
    M. Lee Smith Publishers


  • Unless you have a state regulation to the contrary, remember that FMLA never requires accommodation, whereas ADA often does. Returning part time is an accommodation; one which you are not required to consider or make. Once you get into that sort of thing, you're hard pressed not to continue the same with others who will request the same.
  • Don,

    This ee still has some 7 weeks of FMLA available to her. Her doctor will only allow her to work PT on a reduced schedule for the first 2 weeks when she returns to duty. But you are right this would not be an accomodation under FMLA, but rather her right (at least as I understand it) to work a reduced work schedule if ordered by her doctor to do so.

    With regard to other concerns raised by my fellow forumites, under any normal circumstances an employer would be pleased to have an ee return even on a part time basis, but this is one of those situations where the ee has NEVER been written up or disciplined and has been a poor performer for years (even to the point of getting good reviews). The CEO never allowed me to take any corrective actions. Now that they want to get rid of her (and can't because she is on FMLA), they just dump the problem in my lap and are angry that she is protected by FMLA.

    They make the mess and expect HR to clean it up.

    Thanks.
  • Dumping the problem in HR's lap? What a novel idea!

    You are under no legal obligation to bring a full time person back as a part timer (accomodation), but most companies would elect to have an employee come back on a part time basis with proper documentation from a physician. They just charge the hours they can't work as FMLA (intermittent). Also, look at what has been done in the past...if the company has allowed this in the past...then I would say, they must be fair and consistent in administering the reduced work schedule.

    Sounds to me like what you said....they want to get rid of the employee...this is a dangerous road to go down as they could be sued personally as well as the company could be sued, not only for FMLA violation but also for retaliation for exercising their FMLA rights.
  • I respectfully disagree with some others on this post.

    I don't think that the employer should be looking at the request to return PT as an accommodation. Under the FMLA regulations, an employee is entitled to take a reduced leave schedule FMLA leave. [29 CFR 825.203(c)] Permission is not required when the reduced schedule leave is medically necessary. So, as long as the doctor is saying that she can only return PT, then bring her back PT. There is no undue hardship recognized by the FMLA, so the boss can't claim that it's a hardship to bring her back on a PT basis.

    The FMLA also states that an employer cannot require an employee to take more FMLA leave than is necessary to address the circumstances creating the need for leave. [29 CFR 825.203(d)] So, if the employee is only asking for 4 hours a day, the employer cannot require her to take 8 hours a day.

  • To all and kjsnyder,

    Thanks so much for your input.
    I did finally check with our legal counsel and they verified kjsnyder's post: we are in fact obligated to give her PT since her doctor authorized it as medically necessary.

    I told my boss that, and told him if he still wanted me to do something illegal, I would only
    do so if he wrote me a release letter with his signature saying that "... against the advice of HR, we only want this ee to return FT from FMLA leave..." - funny thing, he decided against writing me the letter and she is now working PT until her doctor authorizes her otherwise.




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