Dr. is no help!

njjel · July 2005

An ee who has been out for 6 months is now (per the doctor) able to return to work. His first letter said she would require a wheelchair. We asked for further clarification as to how much standing she could do and he wrote back "the patient's ambulatory status will depend on the condition of her foot on a day by day basis. Limited ambulation will depend if her foot is swollen and if so, how bad. Other than that, she should have no problem with ambulation". So where in your opinions does that leave us the employer? I still say it is unclear whether or not she can do her job! Your thoughts please.

LivindonSouth · July 2005

Unless your state law requires it, you do not have to offer or even consider accommodation to someone who wants to return from FMLA. If the condition is transient, it is not ADA covered. If her job cannot just as easily as not be done from/in a wheelchair, you do not have do bring her back. If it can be said that her job is a seated job and it matters not where she sits, I'd allow the wheelchair, not as an accommodation though, since in that circumstance it matters not.

Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

njjel · July 2005

What matters here Don is how MUCH time she is permitted to stand, lift, carry. If when she does this her foot swells, then she'd have to be in the wheelchair w/her foot elevated and will not be about to do the essential functions of her job. The doctor isn't clear at all on those points.

Rockie · July 2005

We are going through something like this right now. We had a nuclear med tech who wanted to come back to work after hip surgery after two weeks. The problem was...she was going to be on crutches an additional 6 weeks. Since her job involves walking, standing, helping patients on treadmills, etc., she is not able to perform her job. Basically, we can't pay her to sit on her butt.

LarryC · July 2005

From what you wrote, it doesn't sound like it's a permanent situation with her foot, so ADA shouldn't be an issue. She is way beyond her FMLA protection unless she hit your "calendar basis" policy just right.

Regardless, send a copy of the job description to the doctor and a note simply asking, "Can the employee do this job or not?"

HRLASS · July 2005

I second LarryC re sending a copy of the job description to the dr. with the simple question.

I think the ADA issue needs more info, however. Even if the wheelchair situation isn't permanent, in some long term situations, some venues have held that ADA accommodation is relevant. Again, however, I don't like using terms like "accommodation" when dealing with the employee, even when there is a qualifying disability. I would suggest checking on the projected duration of the wheelchair or equivalent need, then review the job description. If she normally primarily sits and there is no essential function that requires her to stand (lift, etc.), allow her to do so and make accommodations to allow her access to her computer, phone, etc. (For us in one situation, this meant cement blocks and that was all.) If these suggestions don't fit, see if you have another job she might want to apply for or you might have to terminate.

njjel · July 2005

About 30% of her job requires standing, lifting, and carrying file boxes. I'm in agreement w/sending the job description to her doctor and having him say she can or can't do the job. He'll probably say "it depends"!!!!!!!!! If that happens then I'm thinking she can't perform the essential functions of her job.

Balloonman1 · July 2005

I have been dinged for this in the past, but I have never allowed accomodation for non-work related injuries......full release then you can come back to work. Only exceptions were management, as they are sitting on their butts anyway ;-)

My $0.02 worth.......
The Balloonman

Appearing Mondays in July at the Leawood Town Center Plaza free Music Mondays!

LivindonSouth · July 2005

Are you twisting balloons or auditioning prospective paramours?

Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

marc · July 2005

I am with DJ on this one. The 'it depends' answer is not a full release. If you don't have other light duty work available, do not accept her return to work.

Hey DJ, that Leawood Center is a great place for that gig. Do you have glass fishbowl set up for tips and business cards for private parties?

Just wondering how one goes about marketing the balloon business.

Balloonman1 · July 2005

I wear a tip pin and give out cards. Lot of my work comes from word of mouth or people who have seen me work.

I do some balloons that just blow people away so literally I have been hired because they have seen the octopuss or dog that I make.....pretty cool.....

Good music, great venue....
My $0.02 worth
The Balloonman

pork1 · July 2005

NJJEL: Based purly on what you have in this post, I would make the call as "medically disqualified" and terminate, accordingly. I would stipulate in the letter of termination that once her medical condition has improved, where she is ready and able to accomplish all of the essential functions/task of the assigned position, she could reapply for any position in which she would be "medically qualified" to accomplish and that the company will give her application equal consideration with all other applicants at the time of submission.

PORK

lorrie · July 2005

I agree that 'it depends' and 'sometimes' is not the same as a full release. Unless you have a company policy that says otherwise, she can't return to work until fully released.

It sounds like the doctor is not interested in being more specific. I wouldn't spend any more time on that. Tell the employee that the doctor issued a conditional release, and that is not enough. Then follow your policy for additional leave or termination. If she thinks she can do more, then it is up to her to go back to the doctor and talk him into a full release. (Which will create a whole new batch of concerns if she does, but not likely to happen.)

LarryC · July 2005

I agree with you Lorrie, although I probably wouldn't suggest that this employee try to talk this quack into anything. From the sounds of things, it would probably be too easy to do.

njjel · July 2005

I agree too. Where I used to work, no one was allowed back to work until they had a full release for full time duty. I wish it were that way here but upper management tries to help everyone! It becomes a nightmare. I want to help too but at the same time must protect the interest of the company.

LivindonSouth · July 2005

I don't know why this post dropped off the map. I posted it about 3:00 central this afternoon.

I would write a letter to this employee including, in part, the following:

"Despite our continued efforts to get from Doctor (whoever) a definitive response as to your ability or inability to return to work at XYZ and perform the normal, required duties of your job as (job title), such information has not been forthcoming. We therefore are unable to conclude that you can perform the duties of the job you held when you left on medical leave.

"Our policy and practice requires that any employee wishing to return from medical leave of absence present to the company a definitive statement from their physician stating the conditions under which they can or cannot return to full, unrestricted duty.

"Your physician, after our several attempts to gain such information, has offered us nothing substantial upon which we can evaluate your ability to perform the duties of the job you held when you began your medical leave of absence.

"Accordingly, your employment with ABC is terminated effective (date)."

This letter serves these purposes: It establishes what you requested, what you received, what you attempted subsequently to get, what was not provided, what is needed and what your decision is.

The value of this letter is not so much to inform her as it is to provide a document from which you can testify in a hearing of whatever type in the future.

Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

njjel · July 2005

Well we finally turned to labor counsel on this one and he recommends we bring her in and ask her what she is capable to do. If she feels she can do the job as it is - then we let her try and if she fails, we can let her go based on the fact that she can't perform the essential functions of her job. So we are meeting w/her tomorrow afternoon.

Dr. is no help!

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