Human Resource Blog

FMLA & Short Term Disability in NY

Hello,

Can an employee at a senior level be moved to a lower paying role while they are on FMLA, if the employee stated to HR and their manager they cannot completely perform the duties of the position required because of a serious health condition?

Can we then hire in someone to take their responsibility over?

Thanks for posting such an interesting question! Sorry that the answer is so long, but it’s a complicated question. First of all, there are two entirely separate issues here: FMLA and ADA.

As you know, FMLA entitles most employees to up to 12 weeks of unpaid leave when they have a serious health condition. FMLA can be taken intermittently, or can be used to work a reduced schedule. For example, an employee undergoing chemotherapy may use 20 hours of FMLA per week, and work 20 hours per week. Under FMLA, the employee’s job is protected. The employee must be returned to his or her previous position (or one with the same pay, hours, benefits and status) once FMLA ends. NY has it’s own family leave law, but for our purposes the provision are similar (not identical.)

Under FMLA, employers are not required to give leave to “key” employees. This is usually interpreted to mean upper management like CEOs and CFOs. Some companies exclude all employees in the top 10% salary bracket from FMLA. Before you use this exclusion, talk with an attorney or the US Department of Labor, about your specific situation. Some employers in this situation would grant the leave, letting the “key employee” know that he may be assigned to a lower-level job upon return. Others would simply deny the leave to a “key” employee.

FMLA does not have any provision that entitles employees to a change of duties. It simply entitles employees to time off. So, under FMLA, an employee is responsible for completing all his usual duties the day before going on FMLA, and the day he returns. An employee who works part-time is still responsible for the full range of his previous responsibilities — he just spends less time doing them. However, this employee MAY be entitled to a change in job responsibilities under ADA.

The ADA or Americans with Disabilities Act of 1990 requires employers to make reasonable accommodations for workers with a disability. Changing an employee’s duties, with a corresponding change in pay, might be considered a reasonable accommodation in many cases. There are limits to the “reasonable accommodation.” If an employee is unable to perform essential duties of the job (for example, if a pilot can no longer fly for medical reasons) then the employer is not required to make accommodations.

The EEOC, which enforces the ADA, has a pretty strict definition of “disability.” In many cases, a condition that is a “serious health condition” under FMLA is not a “disability” under ADA. For example, a broken leg might be a serious health condition, but it’s almost never a disability under ADA. In this case, the employer would be well within his or her rights to require that the employee’s doctor certify that he has a disability under the EEOC definition. If the employee has a “serious health condition” but not a “disability”, then the employer is not required to make any accommodations for the employee. (If the employee wants to be demoted, and the employer agrees, they could by mutual agreement. But there is no law that requires them to.)

Finally, there is a limitation for accommodations under ADA. Employers are not required to make any accommodation that is an “undue hardship.” There is no such exclusion under FMLA – even if it is an undue hardship, companies must grant FMLA leave to qualified employees.

Please feel free to post any additional questions you may have on this complex issue.