Inability to work over 40 hrs? Entitled to FMLA?

Need help working through this. Employee works 37 hours a week for us. Is pregnant and requests FMLA pre-delivery. Certification from dr. says no limitations on what she can do pre-delivery, just that she's not able to work more than 40 hours a week (which would be no problem here - she never would go over 37). The twist - she apparently has another job too. She's chosen to stay at that one (40 hours per week). Wants FMLA from us. Any wise thoughts. I know safe route is to give FMLA. Just wondering if anyone has dealt with issue of whether this is an "incapacity". Thanks.


  • 3 Comments sorted by Votes Date Added
  • If the paperwork simplys states she can onlywork 40 hours, she is able to work for you. It is not up to you to take into account her other job, just what you need from her. If she comes to you and tells you that she can only have one job, make her get it certified that she cannot work for YOU - it's not up to her to pick and choose.

    If she returns with paperwork stating that she cannot work for you due to her condition, start the clock running.
  • Has she met the eligibility requirements?
  • Agree with Linda. Unless you have let her juggle her jobs in the past, stick with the Dr. stmt. If it says she must limit her working to 40 hours/week and she works 37/week with you, presume she can work the 37. If she can't perform her job duties with you, you need a different Dr. stmt than what you have.

    If you have let her juggle her jobs (yours and theirs) in the past, you may have a different issue, of if you have let others juggle jobs. You may find that you have to be more permissive.

    I'm typically not very permissive in the workplace, so I'd stick with the Dr. stmt and expect 37 hours/week.

    best wishes
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