FMLA - job posting?

karen in nh

I have an employee who was granted FMLA leave on 12/27/04. Her injury is not work related and she is collecting STD. She returned to work on a part time basis, therefore her FMLA is intermittent. She has approximately 96 hours of leave available and here comes the problem. Yesterday she got a doctors note saying that she could work 1 8 hr day, then may work 4 hrs a day up to a max of 20 hours a week. She is a nurse and the nurse manager is telling me that she cannot accomodate this request and because this is not a work related injury, she wants to post her job. Now, everything that I have read says that during intermittent leave, she can be transfered to an "alternative position" in order to accomodate this leave, but upon return from leave she must be returned to her original job immediately. The nurse manager disagrees with me. Any suggestions?

System

I was recently 'stung' by the "alternative position" section of FMLA. The employee may or may not accept the alternative position. She cannot be coerced or assigned to it if she does not want to accept it. If the employee cannot return to duty with no restrictions, the nurse manager does not have to allow her to come back with those restrictions. The nurse manager cannot terminate the employee until the end of the leave and only if she is unable to return, and especially if the employee has an ADA qualifying condition. You should run this one by your legal counsil.

pork1

KAREN IN NH: You know the law, tell the supervisor what the organization can and will do to protect the rights of the employee and the position of the company under FMLA! The supervisor can tell you her team can not accomodate and she wants a replacement, then provide her a replacement, but she must understand the FMLA employee will return when she is released by the physician.

Do a search on this for legal discussions and newsletters or simply go to the FMLA with a google search and print off the factors for the supervisor to read for herself.

PORK

HRinFL

You are correct that during intermittent leave, an ee may be transferred to an alternate position that complies with the restrictions of the ee resulting from his or her injury/illness. However, you do not have to create a position for the ee. If you have a position where the ee can perform the essential duties, then you can place the ee in that position while FMLA is running. Also, it does not say that the ee has to return to their previous position immediately when FMLA expires, rather they have to be returned to their original position if they are able to perform the essential duties of that position at the end of their FMLA leave.

Since this is not a work related injury, you are not required to accommodate "restricted duty." Some companies do, some don't, depending on the situation. We cannot accommodate non-work related injuries because we have plenty of ees on W/C that we need to find restricted duty positions for.

You can definitely post and hire someone for her position, it seems that you have a legitimate business need for someone to do her regular job. However, IF at the end of her leave, she is cleared to return to work without restrictions that would not allow her to perform the essential duties of her regular job, she would have to be given her position back. With the state of health care what it is and the shortage of qualified nurses, I doubt that you woulf have trouble finding a position for the replacement if the ee returns.

J Mack

[font size="1" color="#FF0000"]LAST EDITED ON 03-22-05 AT 09:19AM (CST)[/font][br][br]Look at Sec. 102 (b)(2)of the statutes. Employers have the option, here, to put the returning employee into an "alternate" job that better accomodates the intermittent leave...but, pay, benefits, etc. must continue to be the same as if the employee had returned to her usual job. It sounds like you have done this. One other thing to consider, which my group sometimes overlooks, is the employee a "salaried elibile employee who is among the highest paid 10% of the employees employed by your company within 75 miles of the facility at which the employee is employed?" If you haven't, take a look at this and see if it could apply. Otherwise, I think your interpretation is correct. You state that she only has 96 hours remaining under the FMLA. I think the situation changes after all FMLA is used...and the employee is still not released to return to full duty.

System

Look up 'Roberts v. Owens-Illinois, Inc.' referring to "an employee's voluntary and uncoerced acceptance of a 'light duty' assignment while recovering from a serious health condition" (section 825.702(d)). You can't force your employee to take light duty.

Don D

I thought from your post that her physician was releasing her to return to work on a restricted basis, with the restriction being the hours of work, not the duties.

It is true that under FMLA, the employer cannot require the employee to return to work if the employer has a restricted-duty opportunity available for that employee. You might be inclined to require that she return in some capacity that allows, for example, sitting in a cubicle all day tracking meds or polishing thermometers, but you cannot do that under FMLA. In this state, you CAN require that of someone out on Comp, but you cannot under the Federal program (FMLA).

Remember that there is a huge difference between intermittent leave and return to work in a restricted capacity. One is for leave that, due to the nature of the situation, allows the employee to be off intermittently. The other concerns working out an arrangement that allows one to work in a duty-restricted capacity due to the nature of the medical condition and the job's essential functions. They are not the same.

Other posters are correct in that you are at liberty to post and fill the position at will; however, it is also correct that upon the expiration of her approved FMLA, and after she has used her approved, available entitlement, the employer must return her to work if she is ready and able to return and the doctor has released her to return. There is absolutely no FMLA requirement that the employer entertain restricted duty or that she be accommodated. FMLA does not mention accommodation, whereas ADA does.

Not knowing anything about her situation, we can't speculate as to whether ADA enters this picture, but I doubt it.