FMLA/ restoration not key employee

A week before returning to work from FMLA, my work provided me the completed form for Family and Medical Leave Act Request, this form states on the second page that I am not a key employee and that they had determined that restoring me to employment at the conclusion of FMLA leave will cause substantial and grievous economic hart to them.
With the above in mind:

When returned to work, I had been given a restriction of 8 hours a day 5 days per week with maximum of 40 hours. I am salaried and we often work more hours. The second day to work, it was requested that I work late. My HR department said,you shouldn't be working late,it is in your restriction. It continued and after rejecting this throughout my first week back, the second week, I seceded and worked late several days. On friday of that week, I was called up and they said they wanted me to work 3 days a week instead of every day and placed me on hourly.

Note: Owner doesn't work with our department until after hours because we are the only ones that don't get paid overtime. It is believed that they did this so I would be there after hours when they want to be working with us.

What is the stand on this according to FMLA?
If they choose to say we don't want you anymore because of this whole thing, what is my stand on this?
They wanted me to work more and then cut me to 3 days per week

1 answer  |  asked Jul 1, 2008 6:32 PM [EST]  |  applies to Arizona

Answers (1)

Francis Fanning
FMLA question involves other issues

Your question has jumbled together several issues. First, the FMLA form you have described and the information checked by the employer makes no sense. A "key employee" is one whose absence would cause substantial economic harm. An employer's obligation under the FMLA is to restore the employee to his original position or to an equivalent position upon his return from leave. This obligation does not extend to employees whose absence would cause substantial economic harm. To show that reserving your position for you would cause substantial economic harm, the company must show that you are a "key" employee. By saying that you are not a "key" employee, the company has answered the question of substantial economic harm. In any event, you have been restored to your position, so I'm not sure what your problem is with the form language.
The issue of work restriction has nothing to do with the FMLA, except to the extent that it becomes necessary for you to take time off work for a continuing medical condition. A work restriction is normally something you request from the company with the recommendation of your doctor. If your doctor released you to return to work with the restriction that you not work more than 40 hours per week, your employer is granting you that privilege at your request. If you are choosing to ignore your doctor's advice and work more hours than recommended, you are sending a mixed signal to the company. I suggest that you discuss this with your doctor and, if the extra hours are not a problem, have the doctor remove whatever work restrictions were communicated to your employer.
You really should consult an attorney if you cannot get this cleared up. Your employer may be making assumptions about your condition that are not warranted, and the boss is obviously not in sync with HR. But it also sounds like you are exacerbating the problem by disregarding medical advice. As the warden in Cool Hand Luke said, "What we have here is a failure to communicate."

posted by Francis Fanning  |  Jul 1, 2008 10:40 PM [EST]

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