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Employee returning from FMLA leave? It’s OK to ask about his ability to do the job

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in FMLA Guidelines,Human Resources

After employees take medically re­­lated FMLA leave, they sometimes aren’t able to physically perform their jobs. Employers can certainly raise the issue with the employee and can even terminate the employee if he or she can’t perform the job. Just make sure you keep the ADA limitations in mind.

Recent case: Mary Sisk, the manager at a photo studio, injured her back. She was hospitalized, underwent surgery and took 12 weeks of FMLA leave. She returned with no restrictions.

However, she would no longer climb ladders, bend over to pick up objects or perform other functions that she did before. Her supervisor spoke with her about the problems and asked if she needed to quit and reapply later when she could do the job. Sisk tore up her badge and left … and then 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 you can “reasonably accommodate” her disability 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.

Online resource: For advice on how to legally collect medical information from employees on FMLA leave, read "What's up, doc? How to collect medical info under new FMLA rules."

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{ 1 comment… read it below or add one }

Dan June 16, 2012 at 3:57 pm

Upon return from FMLA leave, an employee is entitled to be returned to the same position held when leave commenced, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment.
I found a great website where they have a great FMLA Employment. application


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