Answer:
Yes.
The law is absolutely clear under FMLA that an employer has to allow an employee only 12 weeks of leave per year. Department of Labor regulations that attempted to lengthen this period (by providing, for example, that if the employer didn’t notify the employee, the time was extended) have been struck down by the courts. So, from that perspective, you don’t have to take this employee back at all, unless, of course, your own corporate policy is to allow people more than 12 weeks of leave.
Nor do you have to honor the employee’s request to work on a part-time basis, again, unless you have such a policy for employees who are out due to reasons not related to pregnancy and childbirth.
If, therefore, legally you are required neither to reinstate this person at all, nor to grant her request at all, it follows that you may grant her request, with the condition that if she elects part-time status then she must remain in that status until a full time position opens up.
Finally, the implications of “complications” has to be discussed. I gather from the wording of your question that the reason this employee was out for 14 weeks was due, in part, to “complications” from the pregnancy which, I further infer from the wording, are now over: the complications, whatever they were, are in the past, which is why the employee is now returning to work. I assume she is not claiming that she needs to work part time for medical reasons.
Otherwise, if the employee were claiming disability, then you would have to do an ADA (Americans With Disabilities Act) analysis: Is she “a qualified individual with a disability”? If so, can she perform the essential functions of the job with or without reasonable accommodation? If so, is part-time work a reasonable accommodation (one that will not cause undue hardship to the employer)? But again, I am assuming there is no ADA question here.
I would prefer not to provide a draft letter in the absence of an attorney-client relationship; the above is general advice, based on facts presented and assumed in and from the question and is intended to provide a basic answer to the question posed.
First published on BankersOnline.com 11/29/04
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