We have a warehouse employee who has exhausted all of her FMLA for this calendar year. She was released to return full time with a light duty restriction of only being able to lift 10 pounds. We have not had enough work to give her due to the restriction so she’s only been working 20 hours a week. Do we have to pay her for holidays? Our policy is only full-time employees will receive holiday pay.
Although the employee has exhausted her FMLA leave, she is still protected from retaliation for having taken FMLA leave. She may also be considered to have a protected disability under the federal Americans with Disabilities Act (ADA) or under applicable state law.
That having been said, as she is working in a part-time light-duty capacity right now, she is entitled to receive the same treatment and benefits as other similarly situated employees. If only full-time employees are eligible for holiday pay, and she is not currently working in a full-time capacity, then it appears that she is not legally required to receive holiday pay.
However, if she is being treated differently for any reason due to a disability (actual or perceived), or due to the fact that she has recently taken FMLA leave, this could be legally problematic. Consistent enforcement of neutrally applied employment policies is very important in this context.
It is not clear from your question whether workers’ comp is involved, but having a standard return-to-work program is a good practice for all employees returning from illness or injury. You may also wish to officially change the employee’s status from full-time to part-time for the duration of this reduced-hours arrangement.
We hope this information is useful, and we thank you for your inquiry. As always, we recommend you consult with qualified local counsel familiar with the details of your specific situation.