After employees take medically related, 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 ofleave. 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 ."
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- Less than 50 workers? Stay silent on FMLA
- How should we get medical information for certifying the need for FMLA leave?