Reinstate employees right after leave; don’t delay

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in Employment Law,FMLA Guidelines,Human Resources

Issue: Employees' right to immediate reinstatement when returning from leave covered by the Family and Medical Leave Act (FMLA).

Risk: Any delay in returning employees to their jobs after FMLA leave could spark a costly lawsuit.

Action: Don't put off an employee's reinstatement unless you obtain a doctor's certification that says the employee isn't ready to return.

If employees tell you they're planning to return from Family and Medical Leave Act (FMLA) leave, you typically must restore their jobs as soon as possible. You can't drag your feet.

The good news: You don't need to blindly return employees if they're not physically ready. Employees' return-to-work rights kick in once they're able to perform the job's essential functions. So, you can demand verification that employees are truly ready to return. To do this, request a medical release that describes the employee's functional limitations. (Asking for any other information may be perceived as an illegal privacy invasion.)

Also, don't be tempted to require that employees be partially or 100 percent healed before returning to work. The proper inquiry: whether the employee can perform the job with reasonable accommodations.

Recent case: Honda production line worker Lori Hoge requested and was granted a month of FMLA leave to recover from surgery. After the month, she returned with a medical release from her doctor, expecting to return to work.

But Hoge had to wait a month to be reinstated. Honda's explanation: It had modified the production line during Hoge's absence and, as a result, finding a job to suit her was difficult.

Hoge sued, claiming the delay violated the FMLA. A district court sided with her, saying the company should have returned Hoge to work the day after she came back to the plant. It also said she could perform several jobs with her restrictions.

The FMLA's "plain meaning" doesn't allow employers to take their time in reinstating returning employees, the court said. By requiring Hoge to take more medical leave than necessary, Honda interfered with her FMLA rights. (Hoge v. Honda of Ameri-ca Mfg. Inc., No. 03-3452, 6th Cir., 2004)

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