How long to hold job
GLC
174 Posts
We have an employee who went out on FMLA leave 12/16/04 with back surgery. Her FMLA expires on 2/15/05. She had been on intermittent leave prior to her surgery so she has used some of time before her surgery. Her doctor's office sent me an update yesterday stating that her next appt is 3/24/05, and her health status will be evaluated then. I know we need to look at the ADA in this situation. My question is what is considered a "reasonable amount of time" to hold her job. Should we hold her job until her 3/24 doctor's appt or term now? I will say in the past that we have held people's job past the 12 weeks, the longest being six months. However, our Board of Directors recommended early last year that we not continue that practice. They think 3 months is long enough for the employee to be off work. This ee would be the first person that we implemented this rule. The bad part is that this ee is the Payroll person so she knows how long we have allowed people to stay off work, and she is one of those who would run to an attorney. We are planning to offer her COBRA after this month. We also know that if we wait for her to return, the situation would then turn into an attendance issue because she would be out all the time with her back. Yes, this is one of those problem employees who tries to milk the system for all its worth. Any help would be appreciated?
Comments
I agree that you are in a pickle. She has intimate knowledge of the employer's past practice and that will likely sink you in a DOL FMLA investigation. All it takes is one call and they show up on your doorstep. In this particular case, they would be armed with all the information ahead of time.
I also agree that should she employ an attorney, your company would be in a tight spot and ultimately would probably wind up settling for quite a sum.
In hindsight, the company should have already publicized its intention to stick to a strict time period; either that which FMLA allows or that amount plus no more than 3 additional weeks for example.
I would also not make assumptions as to what she will do when she returns. Speculating that she will continue to miss, with her back, won't help your situation one way or the other.
I recommend you allow her return consistent with past practice. That means take a look at all the other situations over the past three years and do for her what you did for them.
Good Luck.
Overall, I agree with other posters. Your lead mgmt may have agreed to make a change in company policy, but employees need to know about it. In the middle of the game is not the time to change the rule. To minimize risk, I would recommend publishing the policy change, document that employees are informed, and keep the old practice for this one.
As an extra, if your situation is related to worker's comp and you don't have an early return to work program, now might be a good time to look at getting one in place--pretty much sedentary duties. A payroll specialist should be able to sit and work if allowed some flexibility in mobility restrictions. I'll bet she is sitting at home, in the car, in restaurants, in the doctor's office . . ..
If your case is not worker's comp, it still might be a good time for your company to investigate transition duty/return to work. You can do it without infringing too much on ADA by adopting into the policy that it is 'transitional,' thus temporary in nature, limited, at the discretion of the employer and depending on work duties/staffing needs, and is supported by medical certification. When the medical certification reaches the point of permanent impairment, you are out of the transitional mode and into the ADA mode.