ADA & FMLA - Restrictions on Hours of Work

Jackie

We have an Hourly employee who has brought us a medical statement from her doctor that she can only work 2nd shift - due to Fibromyalgia, working 1st or 3rd shift disrupts her sleep patterns. She has also confessed that she has problems working any shift - even 2nd. Her attendance history backs this up.

Our company has a Union Contract which specifies Seniority in classifications as the only way to move from job to job & shift to shift. Production is slowing down due to current economy. We have offered employees voluntary layoffs and are cutting back jobs. Her current 2nd shift job has been reduced by 1 person (her), and there are 2 available jobs - 1 on 1st & 1 on 3rd. She can do the essential functions of these jobs - just not when they need to be done for our production/shipping requirements.

Would this qualify under ADA or FMLA - or would "involuntary layoff" be justified?

dhnyct

Questions: Did she have sufficient seniority to move to 2nd shift? Was she chosen for layoff because she has the least seniority on 2nd shift? Or is seniority based on service time with the company as a whole?

System

I will assume that you have determined that the employee is ADA qualified and that reaosnable accommodations.

There are no absolute, standard correct answers regarding reasonable accommodations under ADA for any particular individual. Each employee, each situation has to be looked at individually and based upon the specific facts of that situation. The real push on ADA is for both the employee and thge employer to enter into a good faith, interactive process that will find agreeable reasonable accommodations, if they exist. The final responsibility belongs to the employer. The reasonable accommodation, if it exists, must be effective, not necessarily the best nor the most expensive nor even the one the employee wants, though the employee's wishes need to be taken into account.

ADA does not require an employer to provide job security to a ADA- qualified employee if it would not be doing so otherwise. Thus, if you would be laying off the employee the fact that she is ADA-qualified does not change that. Remember, there may be more than one reasonable accommodation.

Further, the employee must still be able to peform the essential duties of the job. If the essential duties of the job have to be performed between certain hours, and the employee, even with reasonable accommodation can't work those hours, then the employee isn't considered ADA qualified any longer. But you may need to carefully assess whether or not you CAN change or modify your shift times without causing undue hardship before you conclude that she is limited to just the 2nd shift. You may need to modify your policies (foir this employee) to allow the employee to work different hours, if it doesn't cause undue hardship.

If you are a union shop that has a seniority system arranged by the contract, you don't necessarily have to violate seniority to accommodate the employee to work a different shift.

In terms of any absences that may be caused by the fibromyalgia, unpredictable or random absences are not considered to be required under ADA. Genrally, predictable attendance is consdred to be part of the essential funciton of the job. FMLA, on the other hand, does provide for sporadic, intermittent leave due to serious health conditions without required advance notice once the quflifying status is established and notice is, as soon as practicable, given by the employee to the employer of the need to be absent due to the serious health condition. "Leave" can be as little as an hour.

Jackie

Seniority is by classification, with employees in class. 6 & below (she is 5) equal. She can't bump into another job class because they are higher class.

We have decided to put her on involuntary layoff. We will still have to deal with the ADA & FMLA - we are only postponing the inevitable.

System

I hope you discossed all this with her. You say "involuntary layoff." If she is really against doing this, she may file a complaint with EEOC or DOL. If so, you'll need to explain what you ARE doing under ADA or FMLA now.

Jackie

I did not mention FMLA or ADA to her specifically. My Corporate HR Manager advised me not to bring that into the picture at this time. I know it will still have to be dealt with.

We did explain to her why the 2 jobs that were still available could not be done on 2nd shift. We explained that we could not guarantee work on any particular shift for any employee or create a job especially for her. There are some jobs that may open up later where we can accommodate her requested work schedule. We have actually done this in the past when we could. She had declined a Voluntary Layoff when it was offered earlier.