I have an employee that was out on FMLA, returned to work and has since been disgruntled. Discussions have been had and documented. Recently the employee is stating physical health issues and knows she does not have any qualifying time under FMLA right now. This employee has been out 10 days and is waiting medical results for clearance to return to work. Do we have to provide the same hours as previously since we already did that when she returned from her FMLA qualifying leave?

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I have an employee that was out on FMLA, returned to work and has since been disgruntled. Discussions have been had and documented. Recently the employee is stating physical health issues and knows she does not have any qualifying time under FMLA right now. This employee has been out 10 days and is waiting medical results for clearance to return to work. Do we have to provide the same hours as previously since we already did that when she returned from her FMLA qualifying leave?

This is a tricky situation. Since you have provided her FMLA and I am guessing she is on unpaid leave right now, you have been very accommodating. The ADA says we should engage employees who have potentially disabling health issues in the “interactive process”. https://helpdesksuites.com/knowledgebase/ada-interactive-process-guidance/

This process helps to determine what sort of accommodations may be possible moving forward. You may decide the best accommodation you can make is to reassign her to another position if her absence is causing an undue hardship on your company.

Whatever you do, just be sure and keep good records. It sounds like you are already doing this. So, walk through all options with the ADA and if you end up terminating her employment you should be safe.

October 2018