Law Suit Happy

T · October 2002

I have an ee who was in an auto accident. She has been off work for the 12 week FMLA period and has brought me a note from her doctor stating that her return to work date is "undetermined". She is having problems with her neck and back, disks and what have you. She goes to the doctor everyday between her and her husbands physical therapy from the accident. On an unrelated issue this same ee has filed wc claims on 2 separate occasions, and from her previous er she was off work for 8 years due to a wc injury.

Effective 12/1/02, there is a light duty policy stating what position will be available for light duty. The ee will not be able to this job. This same job is one from which she filed a wc claim, too much activity on her shoulder (she puts mail into envelopes)? Can I terminate her since she has not returned from her 12 week leave?

John Vering MO · October 2002

I suggest you seek legal advice so that counsel can review the relevant facts. You face the possibity of claims under the ADA, FMLA retaliation, workers comp retaliation and possibly other claims. I suggest you try the interactive process to see if there is any other work available she can do, with or without a reasonable accommodation, and determine whether an additional leave would be an undue hardship and try to determine when she might be able to return to the job. Good luck.
John Vering
Mo. co-editor
jvering&armstrongteasdale.com

Don D · October 2002

[font size="1" color="#FF0000"]LAST EDITED ON 10-28-02 AT 03:10PM (CST)[/font][p]I certainly agree that an attorney should be in the loop prior to termination in this instance. However, it is my understanding that an employee who cannot and does not return to work following exhaustion of FMLA, has no further FMLA protection. FMLA is a job protection statute and doesn't require reasonable accommodation as does ADA. As to whether or not she has ADA protection, it should depend on whether or not she can return to the job with or without accommodation, NOW, within a short/reasonable time, not somewhere down the road. If she cannot stuff envelopes, one might wonder what there is in a workplace that she could do. Let her and her physican suggest an accommodation and then judge its reasonableness. Don't construct any memos and notes referring to her comp experience though. That'll haunt you.

Theresa Gegen TX · October 2002

You will also need to consider your company policy and whether other employees have been given extended leave. You don't want to treat her differently than others.

Good Luck!

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