FMLA/Possible ADA

DMK

We have a situation with an employee who used 12 weeks of FML with a medical certification stating "encepholopathy with confusion and unable to make any decisions or work." Once she exhausted her 12 weeks of leave, we rec'd certification to return to work. We had supplied a job description and task list to the physician who approved the employee to return with no limitations or restrictions. She is back to work 3 weeks and has extreme dificulty doing the essential functions of her job. We are in healthcare and there have been many situations where the employee has put the patient in harms way as she has direct contact with the resident and meds. For some reason, her supervisor has not brought this to her attention. I realize that we may have an ADA claim here as well, however, she does not recognize that she is struggling to work or even think.
I understand that we cannot get a second opinion for certification to return to work. The physician who approved the return is not the same physician who certified the leave is necessary.
What are my options? She is scheduled to work tomorrow and I believe the supervisor must sit down with the employee and bring the safety issues to her attention and even discipline. Since she does not recognize that she is unable to function, must we go the ADA route? We want to help the employee as much as possible, however, we cannot have her on the floor making potentially harmful decisions.

LindaS

Yes, you can get a 2nd opinion for her to return to work. Why was there a different doctor on the RTW slip?

What I would do is sit down with the EE and explain her performance issues. If SHE brings up he medical issues as the reason then you need to look at ADA and begin that process. Simply because she has a RTW slip does not mean that she is home free.

Deal first with the performance and see where it goes from there. Do NOT assume her performance is due to her medical issue until SHE brings it up. You do not want to get into the "perceived as" situation.

stilldazed

Agree with Linda. Talk to the worker asap & before her next work shift. Present the message as a performance issue that must be corrected and outline a plan of correcfion of some sort. Stay away from the ADA issue unless she brings it up.

In case she says she has a medical issue that interferes with her ability, you can require medical certification again, and be clear about the job requirements for the physician. If there is a disibility-level restriction, she still has to be able to perform the job's essential functions with reasonable accomodation. From a different perspective, if she can't get part of the job correct and that part is an essential function, you may not have an ADA issue. She must be able to perform the job's essential duties.

best wishes

DMK

Thank you both for your replies. I didn't know if we needed to start the interactive process since it's obvious she is unable to function in her previous job.

davids

Generally, I would agree with others to avoid discussion of the medical condition until the employee raises the issue. However, as you have medical documentation that indicates her medical condition causes confusion and an inability to make decisions; and those traits appear to be playing out in her performance; arguably, you have already been put on notice that this is a possible ADA situation. I don't see any reason to avoid it in the discussion.

DMK

Thank you. We actually have started the interactive process with her. She is willing to get tested and be seen by a specialist (at our expense). In the meantime, we are not allowing her to work alone since she could put a patient in jeopardy. She knows this is a temporary solution as we cannot have 2 LPN's doing the same job. We are re-orienting her to the job. She still does not recognize there is a problem or even remember what happened that caused her to put the patients at risk. We feel as though the doctors really dropped the ball with her. She has had no type of therapy after her coma and the evaluation to return to work was poorly done. We are hoping that the specialist will be able to provide the medical care she really needs. The problem is getting an appointment in the near future.