Accomodating Intermittent Leave

I have an employee who has returned to work working only 4 hours each morning after being off on FMLA since March 21, 2011 due to cancer treatment. This employee is an loan officer within our Illinois banking institution and has worked with our organization for 26 years. His doctor has released him to 1/2 days as tolerated. He has experienced significant hearing loss nausea and tires easily. We are a very family friendly organization who tries to accomodate our employees more than is legally necessary. However, he just returned to work on Tuesday, July 5th & 6th and this am called in sick. We are beginning to think his idea to return to work so soon is not in his best interest or ours as a business. He is a salaried employee and has exhausted all accrued time. He technically does not meet the exempt criteria but has always been treated as such. Is it ok to pay him only based on the number of hours he works if he continues to try to work 1/2 days? And, is it possible to recommend to him to not return to work for a few months to gain back his strength and collect his long-term disability compensation while he is off work? I have only been practicing in this wonderful world of HR for about 3 years and have not yet experienced this type of situation. FMLA and ADA can be really confusing and I just want to make sure I am taking the correct and legal steps. Your quick advise is very much appreciated! Thank you!


  • 7 Comments sorted by Votes Date Added
  • FMLA is the one area where you can pay an exempt employee on an hourly basis. Pay him for the hours he works, and charge the hours he is off to his FMLA total.

    You can always go above and beyond this, but just remember that you are setting a precedent which may come back to bite you later.

    You cannot make recommendations as to when he should come back to work. If he has been released by his doctor, you must accept it. If he feels he is too tired or has issues with his pay, he may decide to talk to his doctor about his return to work himself.

    Good luck!
  • As usual, I agree with Nae. . well said.
  • Thank you so much for your feed back to confirm for me my options in this particular situation. You have been a great help!!
  • I disagree that you have to accept a doctor's release note. Requiring that note is basically for your protection in case he injures himself by working. If he is not able to perform the essential functions of the job a with reasonable accommodation, you can place him on leave or terminate regardless of what his doctor says. Having said that, I'd wait a couple of weeks and see what his attendance record is. It is likely he'll figure out for himself that he's not able to be there right now.
  • Has this person's FML ended? If so, do you have a regular leave of absence that you offer? While retaining a good employee is important, you also need to be sure you stick with policy as it relates to someone who has exhausted FML. If it appears the employee will soon be able to return then it might be a reasonable accomendation to work with them at this time, but we require documentation from the doctor specifying how long he will require the "as tolerated" status.
  • Traceyd, if you need more info, South Dakota Employment Law Letter editor and employment law attorney Jane Pfeifle (pronounced Fife-lee) recently (about 3 weeks ago) presented a 90-minute webinar titled, "Employees with Cancer: Responding to ADA, FMLA, Privacy & Policy Issues."


    HRLaws subscribers also have access to previous events on the subject. tk
  • If the employee is truely non-exempt, does the job description state this? I'm unclear why he's been treated as exempt if he isn't other than this is commonly done by employers. A truly exempt employee only needs to come to work some hours in the week to be paid, but of course an exempt employee must get the work done that is expected. I urge your business to clarify formally who is exempt and who is not, on the job descriptions to avoid problems in this area as well as FML.
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