Human Resource Blog

This situation is more complicated because it seems that the employee is on Workers Comp. This managers reaction is unusual. Usually, when an employee is on workers comp, the employer is eager to do anything they can to prevent permanent damage. Thats because permanent damage often results in a lump-sum settlement for the employee, which is expensive and can cause the employers workers comp insurance rates to go up. The best bet in this situation is for the employee to contact the workers comp ombudsman in his or her state. It may be worthwhile delaying surgery for a day or so, while this takes place.

A slightly different set of rules would apply if this were not a workers comp case. Generally, employees are entitled to FMLA leave whether or not it is convenient for the employer at that time. For non-elective surgery, a notification of 1 to 2 days is sufficient. For elective surgery, the employee must give 30 days notice. The employee should clarify with her doctor whether this is elective or non-elective surgery.

It is also a concern that the employer might not understand the light duty restrictions when the employee returns to work. The employee should request that her doctor make it very clear that she cannot type at all — not even one word — if that is the restriction. And, if the employee is asked to type, she should gently but firmly refuse, making it clear that she is not able to on her light duty restriction.

It is probably better to separate the two issues here: What should we do with this employee? And, How can we get all the work done? The doctors are probably right not to want to terminate someone who is on disability. You will want to carefully gather all the facts before doing so. If the employee has a disability under the EEOC definition, then the employer may be required to allow her to work part-time as a reasonable accommodation. This is one of the most common accomodations in the business world, under ADA, the Americans with Disabilities Act.

You can certainly require that the employees doctor certify her disability, but firing her might not be your best course of action. The ADA covers employers with 15 or more employees. Some states have similar laws that cover smaller employers. Bear in mind that you have exactly the same requirement to accommodate someone with an emotional health issue, as you do someone with cancer or a heart attack.

Your frustration is entirely understandable. You just need for the work to be done. It sounds like other employees have been working the extra hours, but are not eager to continue to do so. One option would be to contact a temporary service, and hire someone to fill in part-time until this employee returns to work full-time. Another option would be to hire a temporary employee to fill in, making it clear to that person that the job will end when the employee returns to full-time work. Another option would be to hire a part-time receptionist to fill in, and allow her to continue working after the full-time employee returns. (However, be aware that usually the ADA requires that you return the full-time receptionist to her usual job when she is recovered.)

A cynic would say that you have had 8 weeks to come up with a solution to this staffing problem. Understandably, each week you probably thought things would get better next week. But it is not really fair to penalize the disabled employee for your lack of responsiveness.

Read more about ADA compliance here: http://www.eeoc.gov/types/ada.html

That is a great question. When the US Department of Labor says that an employee can take up to 12 weeks of unpaid leave under FMLA, they mean exactly that. The number of days and hours will depend upon the employees normal schedule.

Suppose Beth is a bank teller. She typically works 8 hours per day, 5 days per week. Yes, Beth would be entitled to 60 days of leave, or 480 hours of leave total.

Now suppose Cindy is a part-time stock clerk. She normally works 5 days per week, 20 hours per week. Cindy would still be entitled to 12 weeks of FMLA leave. However, for Cindy that equates to 60 days or 240 hours of leave.

As you probably know, employees can use FMLA leave intermittently or sporadically. Suppose Beth and Cindy both have migranes, which cause them to take FMLA intermittently. Beth is still entitled to a total of 480 hours of leave, while Cindy is entitled to a total of 240 hours of leave over a 12 month period.

At most companies, it is an illusion! Sorry, that is a lame attempt at humor. A fixed work week usually refers to a set work schedule that does not vary from one week to the next. The shifts and hours remain the same.

Tommy is employed at a bank, where he works 10 am to 6 pm Monday through Friday. This is what most people mean by the phrase fixed work week — the hours and scheduled times are regular, and do not change from one week to the next. Tommy puts in 40 hours each week, and he works the same hours and days every week. This is a fixed work week. Sometimes employers will advertise a fixed 35 or 40 hour work week to attract employees.

This phrase is most often used in the negative, such as \\\\\\\”We do not offer a fixed work week…\\\\\\\” meaning that the employees schedule may change every week. Jan is a hotel front desk clerk. One week she may be on the 7 am to 3 pm shift, off on Thursday and Friday. The next week she may work 3 pm to 11 pm two days, and 11 pm to 7 am three days, with Monday and Tuesday off.

The important point to keep in mind is that even if the employer promises a fixed work week, they can change their mind at a later date.

As with most HR questions concerning California, the answer is: that depends. If any portion of the leave was due to pregnancy disability, then probably not.

California actually has 5 different family leave laws. The Pregnancy Disability Leave law applies to employers with 5 or more workers. It entitles pregnant employees to 4 months of disability leave, in addition to their 12 weeks of unpaid leave for baby bonding under CFRA or FMLA. Both Pregnancy Disability and FMLA/CFRA are job-protected.

The CFRA is the California version of the federal FMLA, which entitles employees to 12 weeks of unpaid, job protected leave. The CFRA covers every employer with 50 or more full-time and part-time workers. The coverage is slightly different, and in some cases an employee may qualify for 12 weeks of unpaid CFRA leave in addition to 12 weeks of FMLA. Both CFRA and FMLA are job protected.

The Paid Family Leave Act provides state benefits for parents who are covered under state disability insurance. They can take up to 6 weeks of leave to bond with a new child. This is not job-protected leave, but applies to most employers with 2 or more workers.

Other laws permit employees to take time off for children\\\’s school events, or to use sick leave to care for their family members who are ill.

An employee who has exhausted his or her paid and unpaid leave under all the California family leave laws can legitimately be terminated.

Employers are required by law to display posters on California family leave, and to provide info on the various state family leave laws in the employee handbook.

Read more about the different laws at: http://www.paidfamilyleave.org/pdf/FiveKeyLawsPoster.pdf