#1  
Unread 07-23-2004, 04:36 AM
bchapin
 
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Default FMLA Return With Restrictions??

We have an employee who is off on FMLA for a non-work related injury; this employee has used 8 weeks FMLA to date. His doctor visit yesterday revealed his injury is not progressively healing. He is released to return to work but only with too many restrictions that we cannot accommodate him. (We have never brought anyone back on light duty anyway). My question is: If his 12 weeks run out and he is not able to present a fitness-for-duty stating he is capable of performing the essential functions of his job; can he be terminated?? Or do we need to consider the fact he was released on light duty, we just could not accommodate him, therefore should not terminate him? Thanks for all your expertise! xclap
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  #2  
Unread 07-23-2004, 05:23 AM
marc
 
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Default RE: FMLA Return With Restrictions??

If this is only an FML situation, you can terminate. I would have a bit of concern that an injury that does not heal may become an ADA issue, but that is difficult to tell with the information presented.
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  #3  
Unread 07-23-2004, 05:29 AM
bchapin
 
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Default RE: FMLA Return With Restrictions??

I considered ADA also, however this employee is 8 weeks out with a broken arm.. and if he only has 4 weeks left under FMLA; at what point do we consider a broken arm to limit a major life activity and more than just time off under FMLA?!
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  #4  
Unread 07-23-2004, 05:30 AM
Down-the-Middle
 
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Default RE: FMLA Return With Restrictions??

Having "too many restrictions" is almost an oxymoron to me, cuz if he's able to perform the essential functions, we get the person back to work doing something. Termination may be your only option if you do not offer any other type of Non FMLA leave and you have a practice of terminating people who need more than FMLA allows. Terminating him for lack of light duty options may be reality at your org, but makes for a difficult argument if he's in a protected category, etc., files for u/comp.......
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  #5  
Unread 07-23-2004, 08:01 AM
mwild31
 
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Default RE: FMLA Return With Restrictions??

"My question is: If his 12 weeks run out and he is not able to present a fitness-for-duty stating he is capable of performing the essential functions of his job; can he be terminated?? Or do we need to consider the fact he was released on light duty, we just could not accommodate him, therefore should not terminate him? Thanks for all your expertise!"

If the ee's 12-week FMLA period runs out and he is not able to perform the essential functions of the job or an equivalent (virtually identical) position, then the FMLA does not require reassignment to another job - which would include a light duty position or a lesser job. So yes, as the provisions of the FMLA will no longer protect him and if your own policies do not account for light duty considerations, you could let him go, as he would not be able to perform the essential functions of the job.

In my state, lovely Washington, the ADA protections are broader than the federal regulations. Essentially, the federal law says that the disability must have an impact on a major life function and be permanent or long lasting (there's more, but just trying to keep the post from being too long). In Washington, the law says that ---- TA DA! --- the disability can be temporary or have short duration. In fact, it says, "If the employee has a temporary disability then making short-term changes....is expected." It's only if the ee is permanently disabled and can no longer perform the duties that they can be let go. If your ee were here, I would not terminate. The employer paid benefits would stop (if the ee could not work the required hours) & I would create a light duty position or assign the ee another position in line with their restrictions (pay 'em less too if the other position pays less).

The point of all of this is to check with your state. See if your state laws are broader and therefore more protective than federal laws on ADA. If all I had to follow was federal law, and after a careful review of all of the facts, company policy, precedence, quick call to our employment attorney just to be sure, etc. then I would probably terminate. Just my thoughts.
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  #6  
Unread 07-26-2004, 05:11 AM
Rockie
 
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Default RE: FMLA Return With Restrictions??

Under Federal law, you are under no obligation to bring an employee back who cannot perform the job or who is assigned to "light duty." If they don't have a fitness for duty statement that they can return to the job they were in...you don't have to accomodate unless this might fall under ADA.

If, however, you have a policy that has accomodated individuals in the past, that either need more time or are allowed to come back at less than full capacity, you must administer in a fair and consistent manner.

Finally, as others have stated, check you good 'ole state laws as they may be much more favorable than the federal ones.


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