Human Resource Blog

Partial FMLA

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Am employee was hired for a 12 hr position. Requesting FMLA she submitted a note from a Doctor that stated “due to stress” she was only able to work a 8 hr day for 3 to 12 months. That would be very difficult to accommodate on the shift she currently works, can we request that she work a evening shift where we could easily accommodate that request?

An employer probably can’t reassign an employee on FMLA to a more convenient shift.

 

If the employee is legitimately entitled to FMLA leave, you can certainly request that she switch to the night shift, but you can’t demand it. (And you can’t terminate her if she doesn’t.)

Under ADA, the Americans with Disabilities Act, employers are required to make “reasonable accommodations” for workers. That means in some cases, the employer can deny an accommodation, or suggest an alternate, because the requested accommodation would be an “undue hardship” for the employer.  

However, there is no such restriction under FMLA. Employers must grant FMLA, even if it is not a “reasonable accommodation” and it does create an “undue hardship” on the employer. Employees are entitled to FMLA, period. (Provided of course they are eligible.)

But here are some additional factors to consider:

It’s not entirely clear that the “stress” in this case meets the FMLA test for an employee’s “serious health condition.” The employer has the right to require the employee’s doctor to complete a medical certification form. The US DOL suggests that employers use this form (if the link is not live, go to  http://www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf )

Employers also have the right to request a second (and even a third) medical certification from a doctor of their choice, as long as the employer pays for it. In this case, it might be worthwhile to do so, rather than disrupt your business operations.

Second, the company may not have to provide FMLA if you have less than 50 workers within 75 miles, if the employee has worked less than 12 months or if she hasn’t worked 1,250 hours in the past year.

Third, even if the employer must give FMLA leave, you are not required to give it for a year. FMLA is for the equivalent of 12 weeks. For an employee who works 40 hours per week, that’s 480 hours. If the worker is using 20 hours of leave per week, than she would be entitled to 24 weeks of leave, or about 6 months. After that, she must return to her usual job or face termination.

If the employee used up all her FMLA leave, and still requested additional time off, she would need to show that she has a disability under the EEOC definition – which is pretty strict. Even then, the employer would not be required to make any accommodation that was an “undue hardship” on the company. At that point, you would be able to reassign her to another shift.