ADA; Leave of Absence; Key Position

System

We have an employee at a Texas facility we manage who has a malignant brain tumor and needs surgery (actually done in two parts). This is the 2nd time she has had to have surgery for this tumor. She was hired on 5/30/07 as our Director of Nurses for a Nursing Home and the position is a key department manager. She has requested a leave of absence. Her last day before surgery is 12/4/07 and is assuming she will be off 4-6 weeks following surgery (which are 12/11 & 12/18).

The employee has not been employed long enough to qualify for FMLA and our Employee Handbook states they 'may' be granted a leave of absence (without pay) for valid reasons acceptable to management not to exceed thirty (30) days per calendar year.

My question is being that this is a KEY position are we obligated to give this employee their job back OR are we required to give them an equivalent position? Honestly, there is no equivalent position as they are the Director of Nursing. The closest position would be an RN that makes about $13k less.

Secondly, would her condition qualify under the ADA? Her expectation is recovery, making it sound short term? If this is an ADA situation, I'm not sure we can accommodate without a financial hardship. This is a key position and that department needs the guidance of a Director.

Any suggestions?

stilldazed

Obviously, there is no FMLA protection because of length of service, and your policy leaves the option of granting approved leave to you. My advice would be to stick with you policy, which would be to not commit to giving her the DON position if/when she is available to RTW, unless the position is still vacant. I would also explain to your present DON that while your company wishes her the best and a speedy recovery, some of your commitment must remain with your company and based on that the position will be advertised since your current DON's absence is expected to exceed 30 days. In practice, I would plan to fill the position if a viable candidate surfaced at the 30-day mark. If not, maybe your DON will be released to RTW on the timeline she expects. In she doesn't, however, you will have started your process in looking for a replacement.

If you have a DON in your organization, it is a critical position, and your licensing agency will allow an interim, but a formal change in the incumbent will probably require notification to the licensing agency as well.

As for ADA, I don't think you'll be able to determine that until after the surgery. Unless there is an expectation that the surgery will leave her with a deficit of some sort that impacts her ability to get through daily activities, you probably won't have an ADA issue.

Just for the record, we had a similar situation 2 years ago, but not our DON. Our employee had a benign brain tumor, has had a miraculous recovery, but will probably never work in nursing again. The outcome has not impacted her ability to function on a daily basis, but her physician is very reluctant to release her back to work in a position in which the health of others is dependent on her decisions.

best wishes