Number of Days Restriction

Hello everyone, I've been away for a while but have returned to HR Laws once again and have an FMLA/ADA issue that I can't figure out today. I think my brain is already on the long weekend.

We have long-term care facilities with a work classification in which the employee may be scheduled anywhere from 7 to 9 days in a two-week period. The employee in question is normally scheduled 7 days, however, she has been scheduled 9 days to cover an open position. Our personnel policies do state that no particular number of hours are guaranteed and an employee will be required to work additional hours (up to 10 days) if necessary.

The employee now has a doctor's note stating she has a medical condition that limits her number of days to 7. The DON does believe she has the medical condition so that is not the issue. The employee does not qualify for FML. This is an RN position which attendance is critical.

Do we 1 ) schedule her the additional days and ask her to find replacements which would not count against her attendance record; 2) allow her to call off and use PTO (which is required for all call-offs) but would count against her attendance record (she will not qualify for FML until November 2013); 3) accommodate the 7-day restriction and not schedule her additional days even though this is a critical position and sometimes difficult to find a replacement (although not impossible)? Or, is there another solution I'm not considering?

Thank you!


  • 2 Comments sorted by Votes Date Added
  • Is there any sort of ADA issue here? Your comment of "The DON does believe she has the medical condition so that is not the issue." could possibly fall under the "regarded-as" doctrine, so be careful!

    If there is an ADA issue here, I'd ask these questions.
    1. Can she meet the pre-requisites of the job?
    2. What are the essential functions of the job?
    3. Can she perform these essential functions without a reasonable accommodation?
    4. If not, can she perform them WITH a reasonable accommodation?
    5. What are the possible reasonable accommodations?

    You need to look really closely as to whether limiting her days of working is a reasonable accommodation, or whether it's an essential function of her job. These are always tough cases, but make sure you set a precent you're comfortable following for the next person who says they can't work 9 days.

    Options 1 and 2 that you list seem to be your best bets, but that all depends on the above. Good luck!
  • Thanks for your response...good reminder of the regarded-as prong! Thank you for that. This is a tough one.
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