#1  
Unread 02-02-2004, 04:29 AM
turbo
 
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Default Employee unable to work in current job - surgery

We have an employee who has been with the company a year and a half.

He is a service technician - climbing ladders is a part of his job description and is required daily.

He is now under the care of a physician who has sent a note saying the employee cannot climb ladders due to a wrist problem for which he is being treated. (Not work related - 2-year-old injury now causing problems.)

The employee has been vocal about not wanting to work in the field as a service technician because he originally was hired to work as phone service tech. He did, however, sign the field service tech job description and has been working as such for nearly a year. Things changed - he doesn't like his job.

Question. If he can't perform his job, what do we do with him? We don't have any inside work for him to do. (Plus he is awful on the phones - one reason he now works in the field.)

He is probably going to have surgery very soon. He does qualify for FMLA - but does FMLA start now since he can't do his job and he just doesn't work or get paid until a doctor signs off on climbing ladders again? Do I have to create or find something else for him to do until he can use his wrist again?

He has also made it no secret that he wants to leave the company - but now feels like he needs to wait to find a better job until his wrist is healed. He was interviewing for a new job even last week until he foun dout he may have to have surgery. He took a day off to interview - and told his supervisor that was the reason he was off.

Bottom Line: Do we send him home today and not allow him to return until fully functional and can climb ladders?


Added issue (Late last year we had a field service tech badly injured in a motorcycle accident - not work related). He returned to work as soon as he could (within 2 weeks of the accident) he returned and took an inside job we did have open and badly needed filled because we had another employee out on maternity leave. His hip is nearly healed and our new mom returns soon. Timing could not have been better - as we were trying to fill the inside maternity vacancy with a temporary. The motorcycle accident allowed us to fill it temporarily with an ideal knowledgeable person instead of a 'temporary' to answer phones.


Currently we have no openings like this for the wrist injury employee and plus we know he can't handle phone work.

HELP!
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  #2  
Unread 02-02-2004, 04:52 AM
Balloonman
 
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Default RE: Employee unable to work in current job - surgery

If, and you better be solid on this, if you have no other work available inside, I would send him home until he is able to do the essential functions of his job.
Myself, I do not typically accomodate non work related injuries in my restricted duty policy.
My $0.02 worth.
DJ The Balloonman
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  #3  
Unread 02-02-2004, 01:57 PM
Don D
 
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Default RE: Employee unable to work in current job - surgery

FMLA DOES NOT require accommodations. That's ADA. Forget the accommodations of light duty or reasignment. They are not required by FMLA. Send him home until he can provide a non-restricted release. His job is what it is and he must be able to report to work and perform it, period.

P.S. Chill and re-read the FMLA regs.
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  #4  
Unread 02-03-2004, 01:14 AM
turbo
 
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Default RE: Employee unable to work in current job - surgery

thanks for your input. I understand that FMLA does not require accomodations - but we did allow another worker - who is far more dedicated to the company fill an opening we had at the time. We have no openings at this time. I plan to meet with him today - when he returns from the doctor and let him know that he needs to be fully able to perform his job to return to work.

thanks
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  #5  
Unread 02-03-2004, 02:16 AM
Don D
 
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Default RE: Employee unable to work in current job - surgery

You've added another wrinkle. FMLA discrimination or unfair/unequal treatment while on or returning from FMLA could be an issue if he files a complaint. And FMLA complaints are pretty aggressively investigated, at least in my state. If so, it's going to be clearly revealed that you treated one or more other FMLA situations differently and you'll be called upon to explain that.
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  #6  
Unread 02-03-2004, 02:56 AM
turbo
 
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Default RE: Employee unable to work in current job - surgery

thanks for your comments.

Both have been treated equally - in that we allowed time off from the job to take care of a medical issue. One inquired about an job opening we had at the time that he could fill easily and has done so - months ago.

The other wants us to give him light duty because of his wrist, we don't have any openings at all at this time for light duty - we have a need for field service worker to meet our customer's job orders. We are now hiring an additional service tech to keep up with the work this employee can't do.

Additionally, he openly asked his supervisor for time off last week to go on job interview. He wants to continue to remain on the clock here until his wrist is taken care of and then leave - and/or be reassigned permanately here to a job he wants to do.. since he has made it clear that he no longer wants to work in the field as a service tech and has expressed that over and over again.

When he was told that was his job there were no others..he started seeing a doctor about an old wrist injury. The doctor writes a note saying employee cannot climb ladders, twist wrist or grasp things until further evaluation. So basically as I see it ..he is on FMLA until he has a note to return to full duty...
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  #7  
Unread 02-03-2004, 07:10 AM
turbo
 
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Default RE: Employee unable to work in current job - surgery

Q. What kind of a complaint can he file? I can't displace another employee to provide accommidations for him? Especially since FMLA doesn't require that I do so. We really don't have any openings at this time..and I am not going to 'create' a job to keep him on the payroll and busy until he is released to work in his job - we'll loose money on it. I think at this point if we keep him here with some kind od busy work...and he can't use his wrist(don't really know what he can do)....we expose ourselves to possible on the job injuries form this individual..because he is unhappy and doesn't want to work in his job anymore....

what wouldyou do?
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  #8  
Unread 02-03-2004, 07:59 AM
Balloonman
 
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Default RE: Employee unable to work in current job - surgery

Myself, I would put him off work until he gets a full release. Explain that he can come back once he can complete the essential functions of his job. If he brings up the other, point out the person going out on maternity leave, and a need for temporarily filling that position.
End of discussion.
My $0.02 worth.
DJ The Balloonman
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  #9  
Unread 02-03-2004, 08:07 AM
stilldazed
 
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Default RE: Employee unable to work in current job - surgery

Sounds like you are mixing issues. Separate the issues, and maybe things will get a little clearer. The FMLA side is that he has a medical statement certifying a restriction, and he's either eligible for the protection or he isn't, (which doesn't include pay for the absence). Next, you can either work him or you can't--in his job. Does your company have a policy on transitional duty for non work related issues? If so, what does it say? If not, your company decides whether you can or can't offer a 'temporary' (with well defined parameters complete with signatures) assignment, out of graciousness. (Exercise graciousness cautiously because it usually gives the appearance of disparate treatment, and have circumstances well documented and easy to confirm.) You've said another job is not possible. (Also, I do hope the circumstances for why this situation is different from the other one you referenced are well documented as you may get the privilege of answering this worker's attorney's question or your state's DOL office where many services are free to complaining employees). Next, so what if he's looking for work or recently asked for time off for a job interview elsewhere. That has nothing to do with your FMLA situation and his current medical status. If you let it cloud your decision-making process, you are setting yourself and your company up for a serious headache and you may also convince him (and his attorney) that it was a contributing factor. Everyone knows that a handful employees abuse FMLA. It's frustrating, but it's a fact. If he's trying to abuse it, he's looking for other opportunities to stick it to you. Your role is to administer FMLA properly, so administer it properly, and have your documentation in place just in case there is legal scrutiny. As far as looking for other work is concerned, he is either serious about it and will go or he's just causing you grief. Don't let it get to you. He's clouding your ability to make a clean decision.
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  #10  
Unread 02-03-2004, 08:20 AM
turbo
 
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Default RE: Employee unable to work in current job - surgery

thanks,

I just met with the employee and his supervisor - put him on FMLA expalined FMLA to him and that it is saving his job. The note today from the specialist basically said no use of right hand for gripping etc. We don't have any openings right now at all he could fill -- and no work for some one who is right handed and and can only use his left hand.

I also explained that he shouldn't continue and can't continue working inside in the shop doing repairs to components like he had been doing because it involved using his hand. Based on the restrictions we can't allow it.

He was very upset - and I anticiapted it - he also mentioned we have had someone who couldn't work for the past 4 months. I told him that employee was working full-time in a capacity for which we had an opening that he could fill. He went on unpaid leave for two weeks as well until he could return to a job we did have open. I told him when his medical condition changed to call me and let me know the results of his next appointment on 2/20.

He now doesn't have a pay check coming in and really doesn't see this as anything that has helped him... I told him the company is concerned about his medical condition and his full recovery so he could return to the job. We can't allow him to do activities that he is restricted from doing. He stormed out. Hope he isn't out getting his shot gun from his truck to come back and get me.

He may try to file some kind of complaint - but we have documented everything very clearly. He does feel cheated.
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