What should we do?

Riley · March 2003

We have an ee who has been out on std since August 2002. He has been very good about sending us updates from his dr. The last update he gave us was a copy of a letter addressed to the insurance company for recertification of his benefits. The dr stated, "I have placed him on the following permenant work restrictions: no prolonged (greater than 30 min.) sitting, standing, walking. No lifting and twisting. No lifting greater than 25 lbs. No pushing or pulling." His job description reads physical qualifications include: be able to be on feet and legs long perdiods of time, have ability to clime up and down ladders, must be capable fo shoveling grain approzimately 40 to 50 lbs, must be able to tolerate dusty conditions and outside weather conditions. The manager wanted to wait to see what the neurosugeron said in the next check up (this month.) He didn't want to act on this letter since it wasn't addressed to us, I agreed. The problem is he works at a two man location. Him, and the location manager. Well, the location manager has had to start dialisis and is on the list for a kidney transplant. We also have wheat harvest coming up in June and would liked to get someone in the position trained before then. FMLA cannot be started because before he left on leave he didn't use up all of his vacation and sick. Company policy states you must use up both before FMLA kicks in.

I am lost in what to do! I am not very seasoned in FMLA/ADA. Please help!! This is a family business where we try (bending over backwards) to help out ees, but we need to fill his position. What can we do or not do to resolve the situation?

Riley

HRPeg · March 2003

First, does your company meet the FMLA guidelines: 50 employees, etc? If so, you may want to rewrite your FMLA policy so that PTO runs concurrently with FMLA leave. Of course, this does not help you now.
Do you have a position that this ee can be transferred into? It sounds like it is a grain elevator?? I know those operations generally do not have that many ee's in one location. You do need some advise on ADA (I am not an expert there, either). But you do not have to create a position to comply with ADA, just make a reasonable accomodation.
Are you in Riley, KS? Just wondering, 'cause I went to KSU.

Riley · March 2003

We do have more than 50 ees, so we do have to offer FMLA. We do not have any othe positions he can transfer to, each location has a lead elevator operation (his position) and a location manager. There wouldn't even be a position we could create. Its pretty cut and dry, he unloads truck, mainains the elevator.

I am not in Riley, KS, just graduated from KSU in May. My dog is named Riley. After Riley county, it was better than naming him Pot (Potowatamie county, the county I actually lived in!) GO CATS!

Gillian · March 2003

The FMLA/ADA issue and getting the work done are two different things. You can hire someone, even if on a temporary basis, to make sure that the work is done. When you know the outcome of the disability, then you will know whether or not you have to bring the person back and lay off the temporary worker.

vmiller MO · March 2003

A good issue was raised. Do you have 100 employees in total and do you have 50 employees at the worksite or within 75 miles of the worksite if the worksite has less than 50. If the answer to any of these questions is no, then FMLA does not apply.

Second question is why would FMLA leave be offered after STD? If the employee is entitled to FMLA, then the employer has to offer it because it is the employee's statutory right. Moreover, the pragmatic question is why would you want to run these leaves consecutively, rather than concurrently?

Third, the ADA is implicated. From your posting, there appears to be certain questions. (1) Does the employee have a disability and (2) if the employee has a disability, then is there a reasonable accommodation. Both of these questions require that you, as the employer, engage in an "interactive process." That means that you and the employee in conjunction with the medical providers have to decide if the employee has a physical impairment that substantially limits a major life activity. Do not assume that his condition is such. You need to know what is wrong, how long the condition will last, will more time off be helpful, etc. (I know that the doctor said permanent, but it has been my experience that permanent may not mean permanent if the doctor discovers that the employee is out of a job or insurance0. You also need to know if this condition disqualifies him from this job only or a wide range of jobs. If the answer is no, then the ADA becomes less of an issue. If the answer is yes, then you have to determine if the employee can perform the essential functions of the job with or without a reasonable accommodation. In order to complete this task, you need to be sure what the essential functions of the job are. It would appear from the e-mail that the individual cannot perform such functions, but do not assume that until you know what they are and have medical opinions that support such a conclusion.

If the individual cannot perform the essential functions of the job, you then have to move to reasonable accommodation. Again, the courts are urging employers to engage in the interactive process--talking with the individuals and experts on whether there are reasonable accommodations. The answer will probably be there are not, but you cannot know this until you seek the answers.

As you can see, these issues are complex and difficult. I suggest that you contact your attorney for advice. Also I suggest that you contact the medical providers and even seek out the advice of a vocational therapist. Frankly, the money spent taking these steps is better than any Employment Practices Insurance Policy you may buy.

Good luck.

System · March 2003

Riley, I did not understand about not being able to put him on FMLA because he has not used his vacation yet. To me this means that the first days he was off would be considered vacation, then you can start FMLA. However, if you had done so in your handbook, you could have made the two (vacation and FMLA) run concurrently - meaning FMLA started the day you notified the employee his time off was going to be considered FMLA and his vacation started. Did you send him notification that his time off is considered FMLA? If you have not, do so immediately. It used to be that you could not start the clock until you have done this. However, there have been court cases now that would let you go back and start the clock when they left - it depends on the circumstances.

All in all, it sounds to me like he cannot do the job you require, and if you are a small operation, it might be an undue hardship to accommodate him. But, you now have another problem - you have set a precedent on how you treat medical situations. You may need to treat this other employee with a medical condition the same.

One other thing you say you are small. Are there only two people in this facility? How many other employees are in the company? Are they in the same location or more than 75 miles away? This all makes a difference as to whether the employee is eligible under FMLA.

You have a lot to consider. Let me know if you want to discuss further.

Theresa Gegen TX · March 2003

If he has been out since Aug 2002, he should have been placed on sick (paid leave) and then vacation (paid leave) and that should have been burned off by now. That's how a policy like your is susposed to work, when the employee goes on medical, he is required to use vacation and sick leave. Sounds like if he still has vacation and sick on the books, the policy has been misapplied to him. Also to be FMLA eligible, he must work over 1250 hours in the last 12 months. If he has been out since August, he might not have the hours anymore. Check that. I doubt that he is entitled to any more under FMLA, but I would have to see your company policy to be sure.

If he is not entitled to FMLA leave, then he is not entitled to be reinstated when his medical situation improves -- UNLESS your company police requires it.

Even if he would be entitled to get his job back after leave, that does not meant that you can't hire and train someone to do it while he is on leave. You can. It's just that when he is ready to come back, you might have to bring him back.

I am unsure about what your comment means about not acting on the Dr's information. You have the information, you shouldn't just ignore it. But it is not clear whether these are permanent restrictions or whether he will improve. What if the new DR says "Full Release" -- How could you take that at face value given these restrictions that you know about?

Good Luck!

LisaMN · March 2003

Theresa, I can only hope the line about the company "police" is a typo. or perhaps a Freudian slip? x;-)

Leslie · March 2003

Riley, our HR was given additional responsibilties for another entity which had two employees in a similar situation. Even tho they didn't qualify for FMLA (not enough hours worked) I immediately placed them on FMLA and informed them they had 12 weeks to return to work. I did this because they should have been placed on FMLA at the outset, and I would not deny them the accommodation they should have had to begin with. One returned, one didn't.

What should we do?

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