How long to hold position
GLC
174 Posts
We have an employee who is on half-time status for several monthss,per doctor's orders due to two car accidents. She has also been on intermittent leave also for the last 12 months from the 1st accident and also her husband has a serious health condition. She had two car accidents in 6 months. She will reach her 12 weeks of FMLA in a few weeks. When we ask her when her doctor expects her to come back to work FT, she always say she does not know. We've asked for a doctor's note on this. If the doctor says she cannot come back FT for another 2 months, that is too long for us. It has already created a hardship for us because she is in a critical position in Finance. She is also an employee who abuses the system. Ex. She works half-time in the a.m. but will schedule her doctor's appts. in the am during the four hours she works instead of the afternoon. Our new FMLA policy states the following:
Additional Leave
Additional leave granted beyond the 12 weeks will be at the discretion of F&CCC
and based on the essential functions of the employee’s position. F&CCC may elect to fill the position of an employee who is on leave beyond 12 weeks. However, F&CCC will attempt to return the employee to the same position or to a similar one for which the employee is qualified. If suitable employment is not
immediately available, the employee will be placed on unpaid leave for up to 90 calendar days. If no suitable opening is found during the 90 calendar days, the
employee will be terminated. Nothing in this section shall be construed to limit the rights of employees under the Americans With Disabilities Act.
By the way, we have not given this policy out with the new verbage but will soon. Anyone currently on FMLA will under these guidelines. The policy was just approved by our attorneys. My question is this...If an employee cannot work FT, per their doctor's orders, are they covered under ADA? My understanding is that if they cannot meet the essential functions of the job, (FT status in this case), they don't meet the definition of an ADA person. Also, since she has been on intermittent leave, she will begin to accrue more FMLA time at the end of Sept. At the end of Aug., she will have exhausted her 12 weeks in a 12 month period of FMLA. If we wait until the end of Sept to fill her position, she will then be eligible for more FMLA time and I know we would have to give her this time. The way she has taken her intermittent FMLA time, she will accrue additional FMLA through the end of 2003. We have this one break between the end of Aug and Sept. to decide what to do with her or this could go on for another year. Please advise.
Additional Leave
Additional leave granted beyond the 12 weeks will be at the discretion of F&CCC
and based on the essential functions of the employee’s position. F&CCC may elect to fill the position of an employee who is on leave beyond 12 weeks. However, F&CCC will attempt to return the employee to the same position or to a similar one for which the employee is qualified. If suitable employment is not
immediately available, the employee will be placed on unpaid leave for up to 90 calendar days. If no suitable opening is found during the 90 calendar days, the
employee will be terminated. Nothing in this section shall be construed to limit the rights of employees under the Americans With Disabilities Act.
By the way, we have not given this policy out with the new verbage but will soon. Anyone currently on FMLA will under these guidelines. The policy was just approved by our attorneys. My question is this...If an employee cannot work FT, per their doctor's orders, are they covered under ADA? My understanding is that if they cannot meet the essential functions of the job, (FT status in this case), they don't meet the definition of an ADA person. Also, since she has been on intermittent leave, she will begin to accrue more FMLA time at the end of Sept. At the end of Aug., she will have exhausted her 12 weeks in a 12 month period of FMLA. If we wait until the end of Sept to fill her position, she will then be eligible for more FMLA time and I know we would have to give her this time. The way she has taken her intermittent FMLA time, she will accrue additional FMLA through the end of 2003. We have this one break between the end of Aug and Sept. to decide what to do with her or this could go on for another year. Please advise.
Comments
It states that "The individual must be able to perform only the essential functions of the job, with or without reasonable accommodations." Examples of reasonable accommodations in the statute include "making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructing, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar accomodations".
The EEOC define an undue hardship as an action that requires significant difficulty or expense. Only you can answer if it would cause an undue hardship to your company.
Hope this helped a little. Have a good day!
(this was taken out of the Thompson Publishing Group, Inc. ADA Compliance Guide)
My $0.02 worth.
DJ The Balloonman