Revised ADA & FMLA question
GLC
174 Posts
We have an employee who is on workers' compensation and FMLA concurrently. Her FMLA ends on 12/7/01. She submitted today something from her doctor stating that she is to have surgery on 12/6/01 and will need to be off work for 3-4 months after surgery. Her surgery is related to workers' compensation. She has a damaged rotator cuff. We were moving into a new building 2 months ago, and she tripped over her own feet and hit her head on a filing cabinet. She did extensive damage to her right shoulder and arm. She is a data entry operator, and we are concerned that even after the surgery, she may not be able to do her job because of the damage to the arm and shoulder. Can we terminate her after her FMLA ends considering the obligations under ADA? If we cannot terminate her, what are our obligations under ADA? We have no light duty jobs either. This is in Kentucky.
Comments
Also, how have you treated others in the past who have used up their FMLA and needed a bit more time. If you have given it to others you probably need to give it now.
As far as the ADA, there have been some cases that have required employers to give more than 12 weeks off. Generally these involve the doctor giving a somewhat definite diagnosis about the time that will be needed by the employee. The question then becomes whether the additional time needed poses an undue hardship for the employer. (and this assumes that she is disabled under the law).
One issue that I would not worry about now is whether the employee will ever be able to do her job. Right now, you can only speculate about whether the surgery will allow her to do the essential functions of her job. Her condition will either improve to a level where she can return to work or it won't.
Because of all the potential legal landmines in this situation, I would contact a local employment lawyer before terminating this employee.
Good Luck!