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HR Matters E-Tips

 
       

THIS WEEK'S E-TIP

Work Schedule Reductions under the FMLA and ADA Q&A

 
 
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Editor's Note: These question and answer HR Matters E-Tips articles are taken from real questions submitted by our subscribers, a unique feature of the HR Matters Tools and Resource Center online service. See how it works.
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If an employee cannot work his regularly scheduled hours because of a medical condition, do you have to allow him to work fewer hours? Is this time covered under the FMLA or the ADA? Find out what your obligations are under both of these laws to reduce the employee’s work time.

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Q: If an employee is normally scheduled to work 40 hours a week but asks to reduce his work schedule to 32 hours a week because of a medical condition, should we count the 8 hour difference as FMLA time? The employee did not specifically request the reduced work schedule as FMLA leave. Also, we are not sure if the medical condition is permanent or temporary. How long can he continue on a reduced work schedule?  
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A: If the employee is eligible for leave under the Family and Medical Leave Act (FMLA), then any reduced work schedule that is caused by a reason covered by the FMLA should be treated as FMLA leave. (As a reminder, the FMLA applies to all private employers with 50 or more employees and all public agencies and public and private schools and allows eligible employees to take time off for various family and medical reasons.) Generally, employees may take FMLA leave intermittently or on a reduced leave schedule. A reduced leave schedule refers to a schedule that reduces an employee’s usual number of hours per workweek or workday for a period of time, such as switching from full-time to part-time work for several weeks. However, it is not a reduction in job duties or a light duty position, just a reduction in hours.

(Download free Leaves of Absence model policy including HR best practices and legal background.)

Further, it is the employer’s obligation to identify when a leave qualifies for FMLA and to designate that time accordingly. So, even if the employee did not specifically request that the reduced work hours be counted as FMLA time, as long as the employee is eligible and the reason for the reduced work schedule is a serious health condition, then the time should be designated and counted as FMLA leave. Thus, you should provide the employee with all of the necessary notifications and information on the FMLA.

In addition, it does not matter whether the medical condition is “temporary” or “permanent” under the FMLA. Rather, the key issue is whether the condition meets the definition of “serious health condition” in order to be protected by the FMLA. If it does, then the FMLA allows the employee to take up to 12 weeks of FMLA leave in a 12-month period for the serious health condition, and the leave can be taken intermittently or on a reduced work schedule basis if medically necessary. As long as the medical condition continues to meet the definition of a serious health condition and the employee is otherwise eligible to take FMLA (i.e., continues to meet the eligibility requirements such as working the requisite 1,250 hours in a year), then the employee can take the 12 weeks in each 12-month period.

The ability to take FMLA leave every year is one of the difficulties in dealing with chronic conditions under the FMLA. So, in this situation, if the employee takes 8 hours a week of FMLA leave, he would only take a total of 416 hours of FMLA leave in the year (8 times 52 weeks). He is entitled to up to 480 hours a year, calculated by multiplying 12 weeks times 40 hours. As a result, you can see why it is important that you have the medical certification that shows the employee actually has a protected serious health condition and that the reduced work schedule is medically necessary.

 
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You should note, too, that even if he exhausts his FMLA leave (for example because he has to reduce his workweek by additional hours), he also may be entitled to a reduced work schedule as an accommodation under the Americans with Disabilities Act (ADA). Although the ADA does not provide a specific amount of leave for disabled employees, it does require you to provide a disabled employee with a reasonable accommodation that would allow him to perform the essential functions of the job. (The ADA covers employers with 15 or more employees.) Reasonable accommodations include, among other things, a reduced work schedule if the reduced schedule would allow the employee to perform the essential functions of his job (for example by allowing the employee to seek treatment while still working fewer hours but without removing essential job functions or by taking time off temporarily for treatment so that he can then return to perform the essential functions) and does not cause your organization an undue hardship.

(Download free Leaves of Absence model policy including HR best practices and legal background.)

So, a reduced work schedule under the ADA also could be ongoing as long as the employee is still able to perform the essential functions of the job and the schedule does not cause an undue hardship. The key under the ADA is whether the employee’s medical condition is serious enough to be considered a disability under the ADA. Again, you should require medical certification of a disability before providing the accommodation.
 
 
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Content for your HR Matters E-Tips newsletter is developed from our
flagship publication, the HR Matters Tools and Resource Center, featuring the Personnel Policy Manual System (PPMS). See how it works.

Subscribers to the PPMS and HR Policy Answers on CD can find more information on reduced work schedules and the FMLA and ADA in Leaves of Absence, Chapter 703, note 40.

If you don’t have access to the PPMS, but would like to have a free, no-
obligation 14-day review, go to: www.ppspublishers.com/ppm-ez.htm

Or just give us a call at 1-800-437-3735.

 
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Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.

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