Supervisors who handle employee return-to-work requests followingmust know what they are doing. Otherwise, your legal risk could rise significantly.
For example, employees usually have two years to filelawsuits. However, they have three years if they allege their employer willfully violated the FMLA. That’s pretty easy to show if a supervisor throws up roadblocks that effectively prevent the employee from coming back to work.
Recent case: Thomas, who worked for the Philadelphia Housing Authority (PHA), has diabetes. Following a trip to the emergency room, he was hospitalized with gangrene and had two operations, the first to remove two toes and, shortly after, another to amputate the rest of his foot.
When Thomas called PHA to report that he would miss work, his supervisor told him he’d have to fill outand get a health care provider to certify that he needed time off. Thomas did, and his doctor said he would need two to three months to recover.
When he was done with rehabilitation, Thomas was fitted with a special boot that allowed him to walk. He got a clearance from his doctor to resume work, preferably at a desk.
However, his supervisors told him he had to talk to someone in the legal department for clearance. After many calls, he finally spoke with someone there who told him a PHA doctor had to clear him for work. He was directed to schedule an appointment, even though Thomas explained that his own doctor had cleared him and that he could walk with the special boot.
Again, he made numerous calls to schedule an appointment with the in-house doctor. Meanwhile, PHA sent Thomas a letter informing him that since he had used up his FMLA leave but hadn’t returned to work, he was being terminated.
After more than two years, he filed an FMLA interference lawsuit. During those two years, he had more amputations, which may have contributed to his delay in filing his lawsuit.
PHA asked the court to dismiss the case on the grounds that Thomas had waited too long to file.
The court refused to grant the motion to dismiss. It pointed out that the deadline is three years if the employer willfully violated the FMLA—and that, based on Thomas’ account of events, the PHA’s conduct could certainly be classified as willful. By ignoring Thomas’ reinstatement request despite being informed he was ready, willing and able to return, PHA had ignored its FMLA obligations. The court also slammed its demand for a second return-to-work assessment—which it never managed to schedule before firing Thomas for being absent longer than the FMLA allows. (Freemen v. Philadelphia Housing Authority, No. 12-1422, ED PA, 2012)
Advice: Train supervisors on the FMLA, including specific instructions on how to handle return-to-work issues. Explain that once an employee has his doctor’s clearance to return to work without any significant restrictions, reinstatement should happen immediately.