FMLA / ADA

Anna

I have an employee who hurt his back off the job. He took 6 weeks FMLA (1/2 - 2/9/01) to go to doctor's visits, etc. He received a full return to work notice on 2/10/01. He worked full duty until he went back to the doctor and the doctor advised him he needed surgery. He took 2 days FMLA on 3/13-3/14/01 to go to visit doctor and get more information on the surgery. On 4/2/01, he started taking the rest of his FMLA. His return to work date is 5/10/01. I just received a return to work slip for 5/10/01 for light duty. Do we have to accomodate his request for light duty even though he does not qualify under ADA? Also, can we fire him if he does not produce a full return to work slip starting 5/10/01 since his FMLA runs out?

System

If you never, ever have put any employee on "light duty" (how ever that is defined) and you have a policy of not doing that, and you do not grant any medical leave in excess of what FMLA requires and the employee's FMLA runs out (all of it under the way your company determines the FMLA year), and the employee is not disabled under the definition of ADA, you could probably say to him "too bad." How long would he be on "light duty" if you were inclined to do it?

Regarding ADA speciically, on the face of it you may think he is not ADA qualified because of the back injury. But medical impairments don't have to be permanent under ADA to qualify as disabilities. They can be long term--may a year or so. So, without knowing more about his condition, you may at least have to determine ADA eligibility just to avoid the problem of EEOC coming back later saying you had the obligation to evaluate "reasonable accommodation" under ADA.

But would you want to terminate or not permit light duty (if possible) if he's a good employee, has some years with the company, will be only on light duty for a short time, etc? What's the value of this employee to your company? What would it cost to accommodate for short time rather than trying to fill his position with a totally new employee?

Is there shorty term or long term disability you offer?

Also, look for your state's laws that may address this.

System

Disability under ADA doesn't have to be a permanent one. It can be long term. How long is "long term" is the $64 question. But from what I've seen about least a year seems to be a dividing point.

John Phillips TN

You do not have to accomodate him if he does not have an ADA disability. Once
the 12 weeks have expired, he is not entitled to additional FMLA leave, and
termination can follow. Just make sure that you have handled other situations
in the same manner.

John Phillips
Tennessee Employment Law Letter
423/785-8325

Watson

Is this true even though the injury is job-related? Are you saying that once vacation and FMLA time are used up, you can terminate him when the missed time is due to a work-related injury?

System

I think John's post was an answer to Anna's post about "an employee who hurt his back *off* the job."

John Phillips TN

yes

Anna

Thank you for your answers. I found that officially he is not an ADA candidate due to not being diagnosed by the doctor as permanently disabled. But, in our best interests, we should offer light duty due to him being on short term disability. Our plan states that while on std, with or without FMLA, an employee is covered (for the max of 26wks) without fear of losing his job. Since he can come back to work, we should accomodate him accordingly. I also found that if by chance he follows up with the doctor and the dr decides he cannot perform the essential functions of his job (major life activity-ADA) without accomodation, then we would have to accomodate him as to the ADA laws. (given the dr gives this to me in writing, etc).