FMLA: Count reduced-hours accommodation

Here’s something to consider when you approve a disabled employee’s request for a reduced work schedule as a reasonable accommodation: You can count the hours not worked against her FMLA entitlement.

Recent case: Salwa Basta was a hotel bookkeeper. During a routine review of hotel finances, management directed all its bookkeepers go through old invoices that were stored in large boxes. Basta hurt her shoulder while trying to retrieve a box of invoices and went out on medical leave.

Basta had medical restrictions when she returned, which the hotel honored. She then took more leave for surgery and returned to a half-day schedule as an accommodation. Plus, the hotel allowed her to take frequent breaks and assigned work that didn’t require lifting.

Basta needed yet another operation. HR informed her that she would have to come back to work within a few weeks because she had used up most of her FMLA leave. The problem: The hotel was counting four hours per day against Basta’s FMLA entitlement. When she didn’t return in time, she was terminated.

Basta sued, alleging that when a reduced work schedule is an accommodation, an employer can’t count the reduced hours as FMLA leave.

The court disagreed and tossed out her case. (Basta v. American Hotel, No. 10-C-4003, ND IL, 2012)

Final note: The hotel did everything right in this case. Over an 18-month period, it worked with Basta by offering accommodations and allowing her generous time off for treatment and surgery. It adjusted her duties to fit her limitations. But it also insisted on its right to charge her time off against her FMLA entitlement. That’s fair and reasonable. Remember, even when an employee is off on workers’ compensation leave, you can deduct her FMLA entitlement.