My employee was recently out of work for three weeks due to having surgery and returned to work about a month ago. Before taking the time off, my employee was working a full-time schedule for two weeks. Now, due to slower business, I am only able to provide 28 hours per week. I could offer a few more hours if my employee is willing to work 7 days each week. My employee is under the impression that since the time off was for a medical reason, that I am required to provide full time hours again and that reducing the schedule is retaliation for taking a medical leave. Is this true? Must I really give my employee full time hours? Please help!
Excellent question. The answer is maybe. There are two parts to this question. 1) The first is: Did the employee taking protected leave? By law state and federal law most employers are required to provide leave to qualified employees. The most common types of leave include: Oregon Sick Time, California Paid Sick Leave, the Oregon Family Leave Act (OFLA), California Family Rights Act (CFRA) and the federal Family and Medical Leave Act of 1993 (FMLA). It is important to immediately review the circumstances to determine if the absence qualifies for protected medical leave. Did the employee fill out the “leave” paperwork, provide evidence of the need for leave, and returned to work before protected leave ran out? 2) Part two of this question: Can work hours be reduced? If the time off was protected leave, then employers must be very careful to show a business need for reduced hours. You must make sure that a reduction in work hours is fair. Make sure that the missing hours were not absorbed by another employee or by a replacement employee. Also check to make sure that any additional employees that were hired during or after the surgery are not working full-time in an equivalent position. A thorough review is necessary to show that you did not discriminate, even inadvertently, due to protected medical leave. If you would like assistance in understanding what constitutes a protected leave qualifying event, or need help in navigating the various mandated leave policies required by state and federal laws (such as the ADA, FMLA, CFRA, or OFLA), or need help implementing an attendance policy, please contact Cardinal immediately. We’re here to help!