Does lack of light duty work qualify for further FMLA leave?

Pinetree

We have an employee who has been off under FMLA for back surgery. He has been released to return to work with severe restrictions. We have only had sporadic light duty work within those restrictions. When we have not had work, he has been sent home. Our question is if we should count the days when we don't have work available as further FMLA leave, or if it does not qualify for FMLA and is simply a "lack of work" situation. If the time that we don't have work is to be be considered further FMLA leave what is the basis for that? (We understand there are ADA issues we need to consider, since FMLA and ADA often apply to the same situation, but our question is particulary on how to proceed under the FMLA portion of the puzzle.)

Don D

Lack of work is not the situation. Your company HAS work and has work available for this employee...he simply is not capable of performing it. Therefore, in most states, he could not draw unemployment with his medical inability to perform the task. Yes, I think these days would count as FMLA. You should have him set up for intermittent FMLA if some days he cannot perform the job. That's the basis for counting those days. In our state, employers have no requirement to have light duty work available and we do not ever do it unless it is a return from comp injury. Granting an accomodation is one thing, but if the employee cannot perform a preponderance of the duties of the job, there is no light duty accomodation. With comp, it is in our best interest to bring them back on light duty.