We have a new hire (2/7/18) who has been absent 4 full days and 4 half days due to illness. Initially, it was an infection, and more recently due to migraine headaches. She has mentioned that she believes the migraine headaches are due to fatigue from her job. Our ad for the position described it as 8 to 5 daily, 8 to 6 a couple of days a week, and occasionally a Saturday. Her supervisor verbally described the job as 8 to 6 daily, 8 to 7 a couple of days a week, and occasionally a Saturday. Seasonally, there is less time required, and currently it’s the busiest season. This is an exempt position. So many questions: 1) What is the consequence(s) of describing the hours differently in the job posting and then verbally? 2) How do we respond when she tells us that her migraine is due to fatigue from working longer hours, and do we need to offer an accommodation? 3) In spite of her great skills, the fast pace of the position may not be a good fit for her. What do we need to consider in that conversation? Thank you for your advice.

It sounds like you have a few things to consider.

1. She is new. So, even if your company is covered for FMLA she probably is not. But, if she is employed long enough you will need to bring FMLA into the picture.
2. Does your company have more than 15 employees? If so, the ADA applies to this circumstance.
https://helpdeskforhr.com/knowledgebase/ada-help-sample-forms-documents-guides/
https://helpdeskforhr.com/knowledgebase/ada-library/

Under the ADA, you are required to engage in what is known as the “interactive process”. This is a conversation that helps you and the worker decide what sort of accommodation is possible without creating an undue hardship for the company. https://helpdeskforhr.com/knowledgebase/ada-interactive-process-guidance/

As for the way the job was explained – which is correct? I am guessing the verbal explanation is the one she is being asked to maintain. But, is there any way you could bend to the written explanation? Even though this is only a slight difference, making this accommodation would eliminate that complaint and demonstrate your willingness to work to the benefit of your employee. If even the advertised hours are too much for her, the interactive process is very important. Have the conversation and document options you discuss. Ask the worker what she would like to see happen with this situation. Assure her your goal is to manage this situation to the best of your ability as a Win-Win. Have a witness to these conversations and make sure the meeting is somewhat formal.

Doctor’s notes are absolutely acceptable. Since she may be experiencing a disabling condition that may or may not be related to your workplace, a medical certification is warranted. You are not allowed to know details of her conditions. But, her Dr. can provide you with confirmation a condition exists and offer guidance on any restrictions or needs she may have.

Even with the conflicting description of her hours, the job is still intense and shaving an hour here or there is not going to change her outcome that much. Again, in the ADA meeting, ask her what you can do for her. If she needs to go part-time she can be re-classified as a non-exempt worker. Also, be sure that her current exempt status is true. If not, she may be due overtime pay and so may others in her same job. Remember that overtime-exempt workers are paid for full days when they work even a minute or less of that day. So, her partial days off are 100% compensable even if she has no available paid time off accrued in her leave bank. Her full days off – assuming no work is performed – are also compensable if your company does not provide a “bona fide” sick leave program to all employees.

Cases of this nature almost always go to the worker if brought before DOL or go to litigation. So, think that way and make all reasonable accommodations. But, remember the word “reasonable” is in play. It’s a fine line. If you feel you need the next level of advice, you will definitely want to consult an attorney.

Thanks for reaching out! Have a nice week.