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OK to ask about employee’s ability to do job after returning from FMLA leave

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in FMLA Guidelines,Human Resources

Some employees aren’t able to perform their jobs after returning from FMLA leave. Employers can certainly raise the issue with the employee and can even terminate the employee if she can’t do her old job.

Recent case: Mary Sisk worked as a manager for a mall photography studio when she injured her back. After hearing a “pop” in her hip, she was hospitalized and underwent surgery. She took 12 weeks of FMLA leave and then returned with no restrictions. However, she wouldn’t climb ladders, bend over to pick up objects or perform other functions she did before.

Her supervisor spoke with her about the problems and asked if perhaps she needed to quit and reapply later when she could do the job. Sisk tore up her badge and left. Then she sued for retaliation.

The court tossed out her case. It reasoned that Sisk hadn’t shown any connection between taking FMLA leave and the end of her employment. Instead, the problem was that she seemed unable to do her old job. (Sisk v. Picture People, No. 10-3398, 8th Cir., 2012)

Warning: If the returning em­­ployee is disabled under the ADA, you must consider whether she can be reasonably accommodated with additional leave, a modified schedule or other means. In this case, it was clear that Sisk wasn’t disabled because her doctors cleared her for work with no restrictions. Self-imposed restrictions don’t count as disabling.

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