FMLA return with disabilities
hunterchev
10 Posts
[font size="1" color="#FF0000"]LAST EDITED ON 08-26-03 AT 08:14AM (CST)[/font][p]Please forgive me if I ask questions that I probally should know in HR. I am new to the profession, 5 mths, so please be patient. We have an employee who fell off a trampoline, at home, and was briefly paralized, but now he is on a slow recovery. When he went out on leave, no-one informed the HR office until 5-6 weeks later. No paperwork was signed or filed stating his leave and reason for the leave. Our company continued to pay his insurance and kept his position open for him. Now he wants to come back, but can no longer perform his previous duties, and might be on some disability for a long time. Our company simply does not have another "light-duty" position available for him. What are my legal obligations to him? Does ADA come into this? If anyone has helpful information, please e-mail me.
Another question...Do you count the time he has already been off when I put him on FMLA, or does the "up to 12 weeks" start over?
Another question...Do you count the time he has already been off when I put him on FMLA, or does the "up to 12 weeks" start over?
Comments
With FMLA he would be entitled to return to the same position, assuming he is able to perform the duties of the job. If you couldn't keep the position open for him, then he'd be entitled to return to an equivalent position, with saimilar duties, pay and benefits.
If the emplyee is unable to perform the essnetial duties of the job follwoing FMLA leave, then there is no entitlement to the same job nor to an equvalent position.
ADA may come into play here. If the employee's paralysis is long term, meaning at least a year (although th eterm is not defined by ADA or EEOC regulations, courts generall have looked at 12 months as "long term" although eahc case has to bew dtermined individually), but the employee is able to return to work, then you may need to make reasonable accommodations for him to perform the essential duties of the job of the orignal job if th emedical conditon requires them. Another reasnable accommodation, could be continued leave beyond FMLA until recovery to the point that he oculd return to work with or without further reasonable accommodation. Assignment to an equivalent job may be done as a reasonable accommodation. If that isn't possible, then assignment to a lower level job with less duteis and pay may be done.
Hatchetman gave you some good advice. Also, ADA does come into play. Be sure to look around to see if there are any other possibilities for this person. We just brought an employee back from FMLA (car accident/non-industrial), and she will be on restricted duties at least until the end of the year. We have modified her job description accordingly. Basically, she just sits at her desk, answers the phone, and directs staff. Where she used to also work in the field as an inspector,among other duties. I've gone around to other departments looking for other light duties that she could help with and found several areas where she could be of help. - (that's what I meant about 'looking around'). Be sure when you bring this person back to a 'modified' job, you put the words 'temporary & modified" in front of the newly modified job description so there is not misunderstanding that this is the new job for this employee. Also, before bringing this ee back in, send a copy of the modified job description to the treating physician, and have him review it and complete a "Attending physician's return to work recommendations record", and have the ee bring those documents with him to work. Then sit down with the ee and discuss the limitations and job description to make sure this will work with the doctor's recommendations. Make sure the ee knows that this is only a temporary position, and that there is a time limit (usually 6 mos. to 1 yr).
If you are able to turn this into a permanent pos. fine, if not, make sure the ee knows this. Also, review the job performance (yes, even on the modified job) on a regular basis. The employee must still be able to perform the essential duties of the modified job.
[email]cwood@tcpud.org[/email]