ADA After FMLA Exhausted
Rockie
2,136 Posts
Need some guidance with a complicated question.
Had an employee who went out on a routine hysterectomy. Evidently, there were complications involved. She has had to have follow up treatments. She exhausted her FMLA after surgery. The office has accomodated her schedule for radiation treatments. The radiation caused some other complications, etc. We have tried to work with her on this.
This is an office that needs to have this position filled in order to function properly. We are going to hire a part time person because we need one anyway for this office. If we need to go ahead and make this part time person full time and fill the full time position, would there be any legal problems with this?
We can work with this vacancy up to a point. Our policy states that under certain circumstances, we will allow employees to be out an additional six months, but reinstatement cannot be guaranteed, but we will make every effort to place them in an available position.
The employee has informed me that this is not acceptable to her - that she has worked for us for a long time and will not be pushed out of the door because she got sick.
My question is...how far do we go to accomodate individuals like this? We make every effort to try to be fair and compassionate, but we also have a business to run.
Any advice would be appreciated.
Had an employee who went out on a routine hysterectomy. Evidently, there were complications involved. She has had to have follow up treatments. She exhausted her FMLA after surgery. The office has accomodated her schedule for radiation treatments. The radiation caused some other complications, etc. We have tried to work with her on this.
This is an office that needs to have this position filled in order to function properly. We are going to hire a part time person because we need one anyway for this office. If we need to go ahead and make this part time person full time and fill the full time position, would there be any legal problems with this?
We can work with this vacancy up to a point. Our policy states that under certain circumstances, we will allow employees to be out an additional six months, but reinstatement cannot be guaranteed, but we will make every effort to place them in an available position.
The employee has informed me that this is not acceptable to her - that she has worked for us for a long time and will not be pushed out of the door because she got sick.
My question is...how far do we go to accomodate individuals like this? We make every effort to try to be fair and compassionate, but we also have a business to run.
Any advice would be appreciated.
Comments
Bottom line is staying within company policy and legal requirements without setting precedents that could haunt you later. Sounds like she may still be out for an undetermined amount of time, which might qualify her for some level of disability. Even reasonable accommodation under ADA only goes so far.
Her statement regarding planned arrangements being "unacceptable..." sounds like a threat. I'd proceed with caution under the guidance of legal counsel.
In terms of how long this goes on....it varies but you do have some things that are required. You can require the employee to provide periodic up-dates from their physician regarding prognosis and anticipated date the employee may return to work. Each time you get an update you review the situation again to determine whether the situation poses an undue hardship.
I have another question about FMLA. If a company does not qualify for FMLA (less than 50 employees) and someone is out on leave indefinitely and then decides to come back, what, if any, obligations do we have towards the employee. I know they are not covered by FMLA. If the job has been filled in the interim, can we offer a lower level job if we have it available? Thanks for the help and info!
As for your second question, it sounds like you wouldn't be obligated to rehire the employee at all, unless they're covered by ADA, workers' comp, military leave law, etc. Last time I checked, South Carolina didn't have its own family leave law (but don't take my word for it).
Since you're in South Carolina, I believe it's grounds for immediate dismissal if either of these employees is a Clemson fan. If they're USC fans, give them job security (with Saturdays off).
James Sokolowski
Go Gamecocks!
M. Lee Smith Publishers