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Steer clear of cutting sick worker’s job in half

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in FMLA Guidelines,Human Resources

Q. One of our full-time employees, age 60, is ill and expected to be out six months. We'd like to make her position part time, because we need to hire an additional part-timer in another department. Essentially, we'd like to split her full-time job into two part-time positions. Is this legal? —D.H., Texas

A. We'd advise against this move; you may be buying yourself an age-bias lawsuit, and possibly an ADA suit. That's because “splitting” this worker's full-time job into two part-time jobs adversely affects your 60-year-old, possibly disabled employee, which could prompt some difficult questions if she files suit.

Ask yourself: “Are we treating her differently because of her protected class status (over 40, a woman and/or disabled)?” “What have we done in the past with other employees on an extended leave?” “Why are we splitting her job and not her peers' jobs?” “Have we split jobs in the past?” Also, if the employee's leave is protected under either the ADA or the FMLA, you may be obligated to reinstate her to the job she held, or a similar position. Changing her job from full time to part time may violate this rule.

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