I am a supervisor for a small business. I have recently received a letter from one of the employees from her doctor stating that her work hours should be, "Specifically Mon-Thur or Tues-Fri with starting times between the hours of 11:30am07:30p." Her schedule is currently graveyard 1:30am three nights a week. I do not have any of the shift that she is requesting and she has taken herself off the graveyard schedule. I have been told that a doctor's note cannot dictate the schedule of a business (we are a 24hr business) and that it is merely a suggestion. Because I have no shift for her what would be the next step for our business to let her go without recourse to the company.
Our company is in CA.
Thank you,
Michelle

One option might be to have the employee take an unpaid leave of absence until either the doctor's restriction is lifted or a shift she is eligible to work opens up.

If she is disabled, terminating her for requiring an accommodation would be discrimination--and without more information, you cannot be sure she is not disabled.

Hi Megan,

Thank you for your response. In her letter from the Dr., there was no specific illness mentioned. It did state that she was in Chronic Pain Care Mgmt. Does this fall under the FMLA standards?

It might, but again, more information is needed. If she is under "continuing treatment by a health care provider" then yes.

Keep in mind that in CA, it can be disability discrimination to fire her even after she has used up her FMLA leave, because it costs the company so little to have her on leave (you can cut off her benefits, as long as you comply with FMLA, COBRA, and Cal- COBRA).

Hi Megan,

I spoke to the doctor and she told me that my employee suffers from anxiety and depression and fibromylgia. Also, do the doctors have the right to demand certain days and hours that a patient must work? If my employee continues to miss her graveyard shifts because of her "illness" but works her swing shifts, what kind of action can the company take? The job is the same no matter what shift. In fact, swing shift is a lot busier and therfore can be more physical.

Also, after talking to this problem employee, it seems that she needs weekends off because of her chid. I feel that she is doing her best to try and manipulate the company into getting what she wants.

PLEASE HELP US! :(

First, keep in mind, I am a lawyer who specializes in representing people who feel they have been discriminated against. What I am telling you is based on what I would say if I were her lawyer, and I wanted to sue your company. If you were to consult a lawyer who represents employers, they would be able to give you much more precise advice. I reccommend that, particularly if you plan to terminate her.

From my perspective, the most frustrating thing in the world is when the employer puts my client on a leave until their restrictions are removed. If they fire my client, I can sue, and if they give in to the restrictions, I can drop the case, but the leave puts me in limbo. Now, I just told you how to make a lawyer unhappy. Think about that. :p

If her Dr says she can't work graveyard, you can't second guess that, even though she might be working the system. There are some second opinion provisions of FMLA, but the fact of the matter is, with mental illnesses, if the patient says, "graveyard is making my condition worse" the chances are good that any doctor is going to say, "then stop working graveyard." Likewise, she is probably telling the doctor, "not being able to spend time with my kids on the weekend is increasing my anxiety and depression."

Her conditions could classify her as disabled under California law, depending on their severity. If you refuse to "accommodate her disability" then the company will be liable.

I have fibromyalgia and myofascial pain syndrome. While there is conflicting information on both diseases, many doctors believe (and there is evidence to support the belief) that a contributing factor is that the patient does not get enough deep sleep, known as REM sleep. Basically, both are neuromuscular diseases. The muscles sustain wear-and-tear during the day. During REM sleep, the body secretes human growth hormone which repairs the muscles. If someone isn't getting enough REM sleep, this repair mechanism goes haywire and doesn't work, leading to increased levels of pain.

Someone who is working a graveyard shift and trying to sleep during the day might have a hard time getting enough deep sleep during the day to deal with fibroymalgia. So, a change in schedule might be a reasonable accommodation for the illness.

On the other hand, FM is neither helped nor hindered by someone working weekends.

I'd suggest running this by your lawyers.