Issue: Must you allow an employee to return afterif you don't think she's physically ready?
Risk: She could injure herself if she returns. But if you block her return, you could face a failure-to-reinstatelawsuit.
Action: Begin the return-to-work process earlier to see if she still has the ability to perform the job's essential functions.
If an employee on FMLA medical leave gives you a doctor's note that says she's healthy enough to return, but with several restrictions, you face a dilemma: If you let her return right away, she may not be capable of doing the job or she may injure herself again. But if you don't reinstate her immediately, you'll risk an FMLA "failure to reinstate" lawsuit.
What should you do? The best bet is to begin the return-to-work process earlier, so you have time to learn the full picture about the employee's health before she shows up at work. Ask about restrictions and her ability to perform the job's essential functions before she has a chance to hurt herself at your expense.
Only employees who are able to perform the job's essential functions are eligible for reinstatement after FMLA leave. But the right to reinstatement is triggered by a medical provider's bare statement that the employee can return. The two are not the same.
Case in point: Linda Brumbalough, director of a health care facility, worked about 60 hours per week and traveled often before she became ill and took FMLA leave.
Before using up her requested leave, she felt ready to return and asked her doctor to complete a fitness-for-duty certification. The doctor gave her a handwritten note, which stated, "She may return on Aug. 13. She may work a 40–45-hour week and limit out-of-town travel to one day per week."
Her employer wanted more information, so it didn't reinstate her. She filed an FMLA lawsuit and the court sided with her, saying the company's refusal to bring her back by the date on the doctor's note amounted to "failure to reinstate." That's becauserequire only that doctors provide "a simple statement of an employee's ability to return to work." It didn't matter that conditions were attached. (Brumbalough v. Camelot Care Centers, No. 04-5543, 6th Cir., 2005)
Final tip: This case shows how courts view FMLA as an entitlement program. As long as employees comply with the rules, they are entitled to reinstatement after FMLA leave. That's true even if the employee doesn't lose benefits or money due to the delay. He or she has the right to get back to work quickly.
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