Return to Work - Send Employee Back Home?

This is a switch from the usual situation of wanting the FML to end and the employee to come back.
An employee transferred to a new job within the past year, which involves a heavy amount of customer service at a busy facility. She was not performing well and the supervisor had coached, counseled and was about to take further action (move for dismissal) when, you guessed it, the employee applied for FML and has been certified for leave based on bipolar/ depression. After being off for about two weeks, the employee has been released to return and work 32 hours a week only for three months. The release to return to work was signed by a nurse-practitioner for her PCP, and said she will be seeing a psychiatrist "within a month." The facility could cope with the 32 hour week. The problem is that for the few days she has been back, the employee's work has been disastrous: she can't concentrate, makes many errors, leaves customers angry and frustrated, and causes other staff to constantly "go behind" and clean up the messes (and also called in sick the second day back). Nothing dangerous; she just isn't functioning at her job.
Do we have to let her drag out her FML by using 8 hours a week, or can we just tell her "please go home and use your protected leave until you see the psychiatrist and get a return to work from him/her"? Suggestions for how to tell her this - something like "It is apparent you aren't able to function at your job," etc.?


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  • Hopefully you've documented her RTW performance. That said I think you have two choices:

    1. Continue to focus on her performance, document accordingly and issue the appropriate warnings and then terminate. This choice accompanies the fact that you have accepted her RTW from her "health care provider" and FMLA includes nurse practitioner under this definition. Therefore she no longer has FMLA protection. The ADA is in play here, but your documentation shows that she cannot perform the essential job functions.

    2. In a reversal of sorts, you can send her to a doctor of YOUR choice with the purpose of putting her BACK on FMLA.

    I have an opinion about her seeing a psychiatrist "within a month". Either her condition is not that serious or her health care provider doesn't care about her.
  • I consider her to still be on intermittent FML because she is only released to work 32 hours a week (her position is full time) for the next three months.

    For the record, we did give her a memo indicating that her supervisor and manager observed since her return that she wasn't able to perform her job functions and asking that she use her protected leave until she can be assessed by the physician she was referred to. Her response was that her current job is too stressful and she requested a demotion to a clerk position.

    Re: the delay in seeing a psychiatrist. This is puzzling to me, too. I don't know whether few psychiatrists are available near her work site or what.
  • I have had several instances lately where doctors have returned employees to work before they were ready to come back. The employee is out of leave and begs the doctor to send them back to work.

    We had one employee who could not do her job because it required her to be on her feet constantly. She was sitting in a chair directing others to do her work. I sent her home and advised her that she needed to stay out on her FMLA until she could perform the functions of her job.

    We don't have light duty for employees. We try to accomodate them if they can't perform at peak capacity, such as less than full time schedule or if they need to sit or take a break for a short period of time, but they do have to be a functioning employee to return to work.
  • [font size="1" color="#FF0000"]LAST EDITED ON 08-07-06 AT 10:23PM (CST)[/font][br][br]Okay - here goes. x:-)

    An employer can not require an employee to take more leave than "necessary to address the circumstances that cause the need for leave." So, no, you can't tell her to take more leave that her medical provider has determined she needed.


    That said, is it possible to switch the employee to the clerk position? You would still have to pay the same amount in benefits & pay, but allowing her to go to a job that's less stressful, may help her get better sooner. The purpose of the act is to help people in crisis (physically or mentally) and some will take advantage of it and some will not. She may need additional direction right now from her supervisor regarding her role and responsibilities. More than anything - coach & guide right now - you don't want to have anyone from inside/outside your organization question the company's motives. If this person was in a body cast, there's a good chance that people would bend over backwards to assist (if she was allowed to work that is x:-)) - remind the supervisor that her disorder should be viewed by as a big "body cast" until she's better.

    Edit - I just re-read my last few sentences - man! I'm in a nice mood. Should you choose to ignore the last two sentences due to extreme sweetness, then I forgive you. I believe in the coaching & guiding - it's important & it's good for supervisors to stretch their empathy muscles. That said, I would switch the employee to the clerk position & then ensure she has the job description & a verbal sit down with the supervisor to discuss the responsibilites and expectations of the position (document the discussion in writing & have her sign it). If she's done the job before, then set up a training time frame for her that is fair considering the past performance - if she's never done it, provide her similar time as you would to someone new. If she still can't keep up, then you should follow your disciplinary steps regarding poor performance.
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