FMLA done but unable to do the job

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[font size="1" color="#FF0000"]LAST EDITED ON 02-13-02 AT 07:02PM (CST)[/font][p]We have an Associate who has been on FMLA leave due to a stroke. She has come in with her therapist a few times to try to get back into her job duties. She does want to return on a part-time basis at the end of her leave period which is the end of February 2002. However, she has been able to less than 1/4 of the work required for her position.
Can we refuse to let her return because of the extremely low level of productivity? Would the ADA prevent us from doing that in Arizona?

April

ADA is federal. You may have some similar state statute in AZ that has more stringent requirements. I cannot comment on AZ specific issues. However, generally the ADA protects otherwise qualified applicants having a disability. Let's set aside the issue on whether or not her condition qualifies as a disability, and I will assume you have appropriately made the initial determinations that the ADA protections extend to this situation.

A reasonable accomodation requires a look at the employer. What is reasonable to an organization of 1000 might not be reasonable in an organization of 100. Your post does not discuss any other alternatives to termination. It appears that she has requested part time hours as the accomodation. Only you have enough information about your organization the importance of her position and work to know if it's reasonable. For example, does she work in a clerical pool with non-critical assignments or is she the administrative assistant to the CEO? Did another clerk come to you last week and ask to go part time to raise kids/return to school that would allow for a job share between the two? Is she asking for part time work for another 1-2 months while she recovers or is it a request for a permanent part time position due to a prognosis that recovery will not be complete?

Does your FMLA policy allow for a physician's fitness to return to duty determination? Is your question in anticipation that she will be cleared to return? She may have other FMLA steps to complete before you have to decide the ADA issue.

Hope this helps. You may find some good ADA materials on the EEOC's website. Your state workforce commission may also have materials that inform you on your state specific legal considerations.