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How to make sure you wind up in court: Block worker’s return from medical leave

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Management Training,Office Management,Records Retention

Don’t try to put up artificial barriers to discourage employees returning from medical leave. The employee probably won’t go away quietly. In fact, he may file a lawsuit alleging some form of discrimination under federal or New York employment law.

What’s more, a court probably will allow a trial, where you’ll have a hard time showing you didn’t discriminate unless you can show you stonewalled just about everyone else trying to come back to work.

Recent case: John Hudson, who is black, took medical leave from his job as a Greyhound bus driver. Hudson had worked for the company since 1975.

When Hudson’s doctors cleared him to return to work, he called the terminal manager to ask what he needed to do to get back behind the wheel. The manager told him the company would arrange for a physical, drug screening and a refresher course.

But over the next four months, no one called Hudson. Instead, he visited the office at least three times a month asking about his return date and possible routes. Finally Hudson called HR, who told him he had been fired. He was allowed to look at his personnel file, which contained a 1998 reprimand for insubordination. Because the date coincided with another period when he was off work on a work-related injury, he questioned it. That’s when management took the file back.

Hudson sued under the New York Human Rights Law and Title VII, alleging he wasn’t called back to work because of his race and that white employees hadn’t experienced such problems. Greyhound tried to have the case dismissed. The judge refused and instead ordered a trial to determine whether Greyhound delayed Hudson’s return—presumably because it didn’t want to tell him outright it had fired him. (Hudson v. Greyhound Lines, No. 04-CV-1028S, WD NY, 2007)

Final note: If an employee has been out on FMLA leave or has a disability, acting to prevent him or her from returning to work could leave you open to charges that you retaliated against the employee for taking leave.

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