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Gastric Bypass Surgery

nohr4u1yrnohr4u1yr 218 Posts
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I am sort of new to "FMLA World" so I apoligize if this should be a "no brainer" question.

I have an employee that had gastric bypass surgery and will be able to come back on a PT basis for now. She works in our mailroom in which she needs to do a lot of bending, lifting, etc. She will not be able to do this and we really don't have anything else for her to do based on her limitations. She also only has 24 hours left in regards to FMLA protection. Do I have to bring her back since she has a doctor's note? She currently is on STD as well.
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  • 7 Comments sorted by Votes Date Added
  • Don DDon D 9,834 Posts
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    Yo!
    FMLA, unlike ADA, does not require that the employer offer an 'accommodation' to a returning employee. Adjusting hours or duties, as you suggest, would be an accommodation. Under FMLA, you are free to terminate the individual if they cannot/do not return to work, fully released, in their old job at the expiration of the FMLA time period. The only exception to that would be if they do in fact qualify for ADA protection, which this person would not.

    That paragraph was the law. That aside, it's totally up to your company as to whether you want to strictly follow that guideline and terminate or whether you may want to return the employee with restricted duties and accommodations. In other words, you MAY terminate but you do not HAVE to.

    The standard caution applies: Have a policy and be consistent in its application.

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  • nohr4u1yrnohr4u1yr 218 Posts
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    Yo!

    Thank you for your words of Wisdom...

    Have a great weekend!

    Shelley
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  • SystemSystem 5,885 Posts
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    One more thing to think about - if she's "morbidly obese," she might be disabled under the ADA. Then you'd have to consider an accommodation.

    Happy Halloween!

    James Sokolowski
    HRhero.com
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  • Don DDon D 9,834 Posts
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    But James, think about it. Gastric Bypass surgery, by definition, reverses that affliction, does it not? And even if she had been morbidly obese and remained so after the surgery, the obesity is not affecting "one or more major life activities", the surgery is. If the morbid obesity were affecting her ability to work, she would not have been working in the first place, and then may have enjoyed ADA protection. But, since she was working and had surgery and as a result of the surgery needs a restricted work week, I don't see any protection for her.

    By the same analysis, had she been morbidly obese and while waddling through an intersection crosswalk for pedestrians, had been run down by a tractor-trailer, damaging it heavily, would you still think she had ADA protection since the condition of obesity, not the waddling or truck impact, caused her inability to work?

    Let's think this thing through James. And, no, you may not leave early today until you have finished the assignment.
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  • SystemSystem 5,885 Posts
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    Hmmm ... I assumed her surgery was recent, which would mean she's still big. But then would it be a temporary (non-ADA) condition? x:-/

    Good point about working as the major life activity. It could be walking. Or I read in a newsletter article that morbid obesity often is combined with other conditions that are caused by it (heart, circulation) or an underlying medical condition that caused the obesity. And all together they could make a disability. But nohr4u1yr didn't mention anything like that.

    Whatever the answer, it's probably worth thinking about before firing her.

    James Sokolowski
    HRhero.com
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  • WTWT 376 Posts
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    As it was stated elsewhere, you need a policy. Ours here is rather simple. We do not require employees to do 100% of whatever job they are in. We look at the documentation from the doctor on what the employee can do. We conference with the supervisor to see if the employee can be productive for an eight hour day (or part time if that is called for). If they can be productive, we bring them back. If not, they cannot come back.
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  • nohr4u1yrnohr4u1yr 218 Posts
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    I was out for a few days and just read the responses... I must say... that a couple of the them (as usual with this forum)made me laugh. (and who said HR people are a bunch of stiffs?!)

    Anyways, I left a message for her this morning to get the scoop on when she is able to come back and to what capacity. If we can keep her productive we will bring her back. We also have a policy of being able to take a 30 day leave of absence so if we can not accomodate her I will inform her of that policy.

    Thank you for your insight and "visuals".

    I hope you have a GREAT day!

    Shelley
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