older ee w/cancer want to return to work

The first person ever hired by our agency is still employed by us - he's over 70. Starting in December, FMLA was approved for absences relating to treatment for esophageal cancer. He's responded well, and has now become a candidate for surgical extraction of the tumor. Doctor indicates to him that he should be able to return to work mid-April. However, FMLA protection will run out this coming Thursday. He's been on unpaid leave since near the first of January.

This employee "retired" eight years ago and returned to work within 6 months to a part time, manual labor position because he was bored in retirement. He was eventually bumped back up to regular full time at his request, and had been performing adequately through the onset of his medical condition, though he had been talking of retirement again. I think he keeps working just to maintain the health insurance.

As of Thursday, we're done with the FMLA regs with regards to our current employee for nine months. I understand that we have several other things to think about, though, including discrimination based on age and race (he's a minority), if we consider terminating. If we post his position, we'd probably want to require evidence that he can perform the job before considering him again. But if we post, then we also (by our policy) require the same tests of all applicants. So our "best" option is to keep him on the books at our health insurance expense until he is (or isn't) able to provide a fitness for duty report. May I specify a time frame in which to produce this report? May I communicate directly with his treating physicians, considering the ruling regulation now is ADA?


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  • Before I reply further, what is your policy, or in the absence of a policy, your normal practice in situations where employees are not medically able to return to work when they've exhausted FMLA?
  • We've had this situation only once, and it was messy, with work comp issues and accrued but unused paid time off involved. We got an attorney involved, and terminated employment.

    My apologies to everyone for the wording of the initial post - I was interupted while creating, and then accidentally hit Post instead of cancelling when I was able to return to the task two hours later.
  • It seems that this issue is coming up more and more on the Forum, so I apologize if I sound like a broken record: Employers really need a policy to guide their consideration of granting additional leave and/or extending insurance benefits when FMLA and all other paid and unpaid leave entitlements have been exhausted and yet the ee is still not medically able to return to work.

    In your situation, this ee has an approximate release date which (it sounds like) has been communicated informally to you by the ee rather than being stated in his FMLA medical certification. When the FMLA runs out, I would send paperwork to the ee to give to his doctor (I would not communicate directly with the doc) that asks (1) when he can return and (2) what, if any restrictions he will have at that time. In the absence of a policy, and if the release date isn't more than two or three weeks after his FMLA expires, I would probably let him come back to work and see how he does. If it appears that he is having problems performing the job duties, I would send him back to his doc with fitness for duty paperwork.

  • Thanks, Whirl. I didn't think it would be "so easy" or very prudent to drop the whole FMLA line of thought just yet. Will advise our CEO and let you know what happens.
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