The wrong way to replace a worker on FMLA
May 19, 2008 by Sam NarisiPosted in: FMLA, In this week's e-newsletter, Latest News & Views
When an employee takes FMLA, a key concern for the employer: How will the work get done? Here’s an example of a wrong way to solve the problem.
A full-time employee needed time off to care for her sick mother. So she started taking intermittent FMLA, working a reduced number of hours each week.
However, while she was given the time off, none of her duties were taken away. She was fired because she wasn’t able to get everything done. She sued.
The company argued it had no other choice, because there was still work. But the court ruled in her favor, saying the FMLA leave she was offered was “illusory.”
In other words, leave isn’t leave if you’re still expected to do all the work.
Other options
It isn’t always easy keeping things running when employees take leave, but as this case shows, some methods of getting around that fact will hurt more in the long run.
Some legal ways of making sure the job gets done when someone’s on leave:
- Shift duties to the rest of the people in the department
- Hire part-time help until he or she gets back, and
- Temporarily move the employee to a part-time position, while putting someone else into his or her normal spot.
Cite: Lewis v. School District #70
Tags: FMLA, intermittent leave, poor performance, reduced schedule
May 21st, 2008 at 4:34 pm
I wonder how this works for an Exempt employee who is paid on a salary and not an hourly basis. Exempt employees are exempted from the Wage and Hour overtime requirements. There is no limit to the hours that they are expected to put in to get the job done. If an exempt employee applies for intermittent FMLA to take care of someone else or their own medical concerns, and the employee is permitted to adjust their schedule and still gets paid their normal wage (there is no docking for the FMLA), then I would expect that the employee would still be expected to get the job done. In the DOl guidelines for FMLA, 825.117 it states “Employees needing intermittent FMLA leave or leave on a reduced leave schedule must attempt to schedule their leave so as not to disrupt the employer’s operations. In addition, an employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee’s intermittent or reduced leave schedule.” I wonder if an employee submits for intermittent FMLA but the situation can be handled by a schedule adjustment, are they considered on FMLA?
It seems crazy that FMLA could require that an employer change performance standards for employees in addition to providing time off to take care of medical issues. I would think that treating this employee like an “hourly” employee and reassigning job assignments could jeopardize their “Exempt” status.
May 22nd, 2008 at 10:54 am
I have an employee who has filed a request for “Intermittent FMLA”. She is a nurse and there are duties required of her to be her at the beginning of her shift that starts at 7:00 a.m. She states that she has a child with separation anxiety. She comes in anywhere from 7:15 a.m. to 8 a.m. to report for her shift. Sometimes she notifies the facility and sometimes she does not. My question is, does this really qualify for “Intermittent FMLA”? She recently has other home issues including a divorce – prior to this we had no request for “Intermittent FMLA”. The FMLA paperwork from the doctor states F/U appts usually every 6 mths – may increase to every 3 to 4 months. However, when she last took her child to an appt – she called off in the morning and stated that she had this appt. She was asked to provide info that she went to the appt and never did. Her notice is now 13 1/2 months old and she was asked to provide a new certification request – which she has failed to do at this time.
June 11th, 2008 at 3:15 pm
When an exempt employee needs Intermittent FMLA, their status changes to non exempt. They are then paid what their hourly wage would be. The duties should change to fit the schedule also.
June 12th, 2008 at 5:05 pm
Putting a full time employee in a part time position – Will the employee still be considered a full time employee with all the benefits offered to a full time employee?
June 13th, 2008 at 10:49 am
Actually, you *can* dock exempt employees’ pay for time they miss due to intermittent FMLA. Check the regs. You just prorate their salary to a 40-hour week. It’s done all the time and is not considered to jeopardize exempt status. FMLA creates extenuating circumstances.
June 20th, 2008 at 8:43 am
Gaynell,
Yep; when an employee takes FMLA (including intermittent) the benefits must remain intact as they would if the employee hadn’t taken leave.
Sam Narisi
Editor
HRLegalNews