Human Resource Blog

FMLA Return to Work

What are an employer’s obligations when an employee is prepared to return from FMLA, but is only able to work a reduced schedule for a period of time? Are the obligations different if the employee is still protected under the FMLA? Can the employer restrict the employee from returning to work, even if the essential functions of the job do not stipulate the specific number of hours an employee must be available for work? Are the obligations different if the employee is a full-time exempt employee?

As you know, the federal FMLA permits employees to take up to 12 weeks of unpaid, job-protected leave for a number of problems, including the employees serious health condition.

Employees can use FMLA on an intermittent basis, as well as on a full-time basis. In this case, since the employee apparently still has FMLA available, the FMLA can be used to work a reduced schedule. This is a very common use of FMLA. Suppose Ann has a mild heart attack and takes 4 weeks of FMLA leave. Afterwards, Anns doctor permits her to work just 20 hours per week, instead of her normal 40. Ann can use 20 hours per week of FMLA until she has used the equivilant of 12 full weeks of FMLA. In this case, Ann has already used 4 weeks of FMLA, so she can use 20 hours of FMLA per week for 16 weeks. During this time, Ann is paid half of her usual salary, even if she is an exempt employee.

The employer must track all the FMLA time taken by the employee. In most cases, this means tracking every hour of FMLA.

Once Ann has exhausted all of her FMLA time, the rules are different. Generally, Ann must return to her full-time job or face termination.

If Anns condition is considered a disability by the EEOC, then she is entitled to protection under ADA, the Americans with Disabilities Act. (Not every serious health condition is a permanent disability.) In some cases, the employer is required to provide a reduced work schedule as a reasonable accommodation under ADA — but not if it is an undue hardship for the company. For example, if the employer would have to hire a second person to do half of Anns work, that might well be an undue hardship. However, if the work could be distributed among other employees already on staff, than that would probably not be an undue hardship.

FMLA and ADA apply to both exempt and non-exempt employees.