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not really covered by FMLA but what else can we do? New York

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  • not really covered by FMLA but what else can we do? New York

    It's been a long time since I was in HR so I am not sure how laws have changed and need some advice. I work for a non profit with 30 employees. As I recall, this means we are not required to follow policy on FMLA. Our handbook policy is way too general "at management discretion " which I am trying to get management to change. I have an employee who is currently out on disability from a car accident. She works 30 hours per week. She is not sure how long she will be out and Drs' keep updating condition and leave . As of now, she has been out 6 weeks. In the time she has been gone, is it clear that we really should be restructuring the program as we are able to do the work with out that position being filled. I would like to change the position she currently occupies to a more general type position and with lower pay . Her current position was created for a very specific grant which and at a higher rate and really is no longer needed. I need someone who is able to do multiple tasks rather than the one specialized task she does.

    I am not really sure what to do. I don't want her to think she is being "punished" for being out. I would like her to take the other position and stay with us. My questions are:
    1) do I have any obligations (legal not moral) to keep her in her present position and pay
    2) although we are not covered by FMLA b/c she is on disability how does that factor into the situation?

    Any other advice or things I should be looking at or considering? my gut is saying I am fine to do this. Any advice for how we should word our leave policy in the handbook ? my suggestion was rather than "management discretion" to put in something about following federal leave guidelines?
    Thank you!

  • #2
    First, your questions. 1. no, 2. it doesn't.

    While you are large enough for ADA to apply, it isn't clear that her condition applies. If it ends up being longer term, potentially you could have some obligation to accommodate and that could include granting additional leave. It would not include changes her duties and pay to reflect your needs. You can not of course, discriminate ion the basis of that disability, but there are no guarantees as in FMLA either. What is reasonable depends a lot on her duties and the needs of the organization. Just being on STD does not offer any job protection nor automatically implicate ADA.

    That said, anytime you reduce someone's pay it is going to go over like a lead balloon. Same with reduced duties. It is slightly more palatable if directly tied to some known event like the expiration of a grant or a major office reorg, but if this is the only job you plan to restructure, it does look like retaliation. Even if not illegal, expect morale issues and not just with this employee. That is not to say you can not do what needs to be done, just be prepared for the reaction.

    I also would communicate the change as soon as possible, and practical. I would not wait until her first day back to spring it on her. Obviously if she is in ICU it is not a good time either, but do let her know what she is returning to.

    As for policy, this is really more of a management decision. A good starting point is 1 week of leave per year of service, with the caveat that exceptions will be handled case by case. Or, if management is more comfortable with a set number of weeks across the board, delineate in the policy what that will be (6, 8, 12, etc.). You do fall under ADA so at times you will need to consider flexibility. This is also not the case to implement a new policy but you should have a target amount of leave you can reasonably sustain in mind and communicate that to your employee as well.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


    • #3
      Originally posted by ElleMD View Post
      . It is slightly more palatable if directly tied to some known event like the expiration of a grant or a major office reorg, but if this is the only job you plan to restructure, it does look like retaliation..

      Thanks ElleMD -
      this was helpful. We actually are doing strategic planning and are thinking of a restructuring. we like the employee and want her to stay but it is clear in her absence that we no longer need that particular "job" as it is structured now. I am just conscious that it is going to look retaliatory and I don't want that. I also need to make some decisions now because I have other employees who are burned out working with out additional support so I need to do something but I am trying to be strategic in how I do it.
      PS: not ICU. that would be horrible. Car accident - out and about just not able to do too much computer work


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