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Employee returning from FMLA leave? Insist on ability to perform essential functions

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in FMLA Guidelines,Human Resources

Employees who take FMLA leave for their own serious health condition are entitled to return to their former jobs or equivalent ones once their leave is up. But if an employee still can’t perform an essential function of the old job, you may not have to reinstate him. It’s not retaliation to deny reinstatement under those circumstances.

Recent case: Robert Roehlen worked as a Ramsey County deputy sheriff for many years until he retired shortly after using up his FMLA leave. His job had been to transport prisoners and mental patients between jails, prisons, hospitals and courts. Prisoners were always restrained in handcuffs, but the mentally ill were not. Generally, two deputies were assigned to the same transport van.

According to the Ramsey County Sheriff’s Department, all deputies had to be prepared to make arrests at all times.

Roehlen’s trouble began when he had to work with someone he knew had tuberculosis. He refused to do so and filed an OSHA complaint. OSHA investigated and fined the sheriff’s de­­partment for health and safety violations—none of which were related to Roehlen’s tuberculosis complaint.

Roehlen then claimed the stress he underwent while worrying about the OSHA complaint worsened his back problems. He was diagnosed with a condition in which the vertebrae in the lower part of the spine slips out of position. His doctor recommended he take FMLA leave for a few weeks and undergo an intensive physical rehabilitation program.

He was approved for FMLA leave and went for treatment just two times, concluding it was too rigorous. In­­stead, he performed exercises at home, rode his bike and walked.

He claimed he was then ready to come back to work. However, his doctor provided a list of restrictions, including one that told supervisors Roehlen should be able to turn down any particular transportation assignment if he felt his back was acting up.

The sheriff’s department concluded that, with that restriction, Roehlen couldn’t possibly perform the essential functions of his job as a deputy sheriff. For example, he could not arrest someone at any time, an agreed-upon essential function. Roehlen was therefore sent home.

He then retired and sued, alleging interference with his right to return from FMLA leave.

The court didn’t buy it, reasoning that Roehlen hadn’t been cleared to perform his job’s essential functions. It dismissed his case. (Roehlen v. Rams­­ey County, No. 10-3777, DC MN, 2011)

Final note: A warning is in order. Just because an employee can’t perform the essential functions of his job when ready to return from FMLA leave doesn’t mean you can immediately terminate him.

The employee may be disabled under the ADA, and you should therefore engage in the interactive accommodations process to see if there are possible accommodations that would allow the employee to perform his job or another open position. Plus, the ADA may require additional leave as a reasonable accommodation.

For some reason, Roehlen never raised the ADA issue, and the court therefore refused to consider it.

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