FMLA - needs more than 12 weeks

Zelda

I was notified that an employee may need some time off from work due to a serious medical condition. I sent the employee FMLA forms and requested certification. The employee has not returned the medical certification yet, but she has informed me that she has work restrictions (no lifting > 5 lbs, no pushing or pulling > 10 lbs, and rarely kneel, bend or squat)which will be in place until she loses 100 lbs and is able to have surgery, which will probably be in about a year. With the work restrictions, the employee cannot do the essential functions of her job. She has asked to transfer to another position, but I do not have any available positions that would be within her restrictions.

If the medical certification supports what the employee has told me and it is known that the employee will not return to work in 12 weeks, do I still offer the 12 weeks with benefits?

If it is known that the employee will not return in 12 weeks can I go ahead and replace the position or do I have to wait?

Any advice is appreciated.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 06-04-04 AT 04:12PM (CST)[/font][br][br]Although FMLA does not ever require accommodations, she may be ADA covered if she is considered extremely obese, which I think she is. If you determine that you cannot reasonably accomodate those restrictions, then she is no longer a 'qualified individual' under ADA definitions. Based on what you say, I would consider termination. You aren't required to accomodate under one law and may be under the other, but you can determine that to be unreasonable. I see no safety net for her, not that one would hold her if she were to land in it anyway.

Leslie

[font size="1" color="#FF0000"]LAST EDITED ON 06-04-04 AT 05:51PM (CST)[/font][br][br]I replied to this under How to use the Forum, so guess I'll reply again.

My first advice was to move the thread to this area. That's done!

My second advice was if you can accommodate, you need to place her on FMLA and start the clock ticking. After 12 weeks she needs to come back with limitations you can accommodate or you can term.

I will add here, however, that you may have P&P that allows for more time off, or you may have given more time to someone who needed more than 12 weeks in the past. If so, this one needs to be treated the same way.

PS - listen to Don about the ADA. I don't have to follow that, working on an Indian reservation, but if he says it takes precedence over FMLA and you can term sooner I say go for it.

Don D

Leslie: Just wondering; why would you accommodate? And if you would, would you not be setting yourself up for the expectations of all employees that the company accommodates during FMLA? If an investigation by the DOL ever ensued, it would certainly expect you to operate the FMLA program consistently. FMLA is burdensome enough on the employer community without blending it with ADA.

Leslie

Don, since we don't adhere to the ADA, this type of situation would fall under our P&P guidelines of leave without pay - specifically based on FMLA so should I need to I can always fall back on federal law to be consistent. We would not accommodate if we could not accommodate. And after 12 weeks - the max amount of LWOP our P&P allows - if the same accommodations were required, we would term.

Don D

Are you saying since you are tribal the ADA does not apply? If so, then why do you say you 'fall back on federal law'. I'm really not understanding your position at all on the unnecessary accommodation of those on FMLA.

hhaynal

I am with Don and believe that perhaps Leslie got a little mixed up when she said accomodate the employee for the 12 weeks until the FMLA expired and then term.

An employee's position is protected by law under the FMLA for 12 weeks (assuming that employee qualifies). Where an employee has a disabiling injury that prevents them from performing their job, the employee can take a medical leave of absence for 12 weeks. This can be paid or unpaid leave. Generally an employee's PTO bank runs concurrently with FMLA leave. Where the employee designates medical leave of absence as FMLA leave, the employee MUST provide the employer a date of return. If the employee fails to provide such date and does not return to work after 12 weeks, the employee can be termed.

Bear in mind this analysis has not taken into consideration any STD or ADA issues.