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OK to demand proof of full health after FMLA

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in FMLA Guidelines,Human Resources

Qualified employees who take FMLA leave for their own serious health conditions are entitled to return to their old jobs or equivalent ones once their leave is over. But that’s only true if they are fully healed and able to do their jobs.

Recent case: After a stressful reorganization during which she was rejected for a promotion, Ilisa got a doctor’s certification that she was being treated for “depression, anxiety disorders and attacks, and suicidal ideations.” Her employer offered her 12 weeks of FMLA leave, which she took. She was informed that she had to be medically cleared to return to work after her time off.

Ilisa didn’t get that clearance. She did, however, try to come back to work on the assigned day; she was stopped because her doctor said she was still suffering from a serious health condition. A few weeks later, she got the clearance, but the employer refused to reinstate her.

She sued, alleging FMLA violations.

The court dismissed her FMLA claim, based on her own acknowledgement that she hadn’t been cleared for work at the end of the 12-week period. Because she wasn’t, she was also not entitled to the same or an equivalent job—or any job. (Thomas v. St. Mary Medical Center, No. 13-3219, ED PA, 2014)

Final note: Before you discharge an employee who can’t show she’s fully recovered, make sure she isn’t disabled and entitled to reasonable accommodations. In this case, the employee didn’t raise the ADA reasonable accommodations issue to the EEOC and lost the right to sue over it.

That won’t be the case for most employees. The best ap­­proach is to engage in the interactive accommodations process if it appears the employee may be disabled under the ADA. Additional leave may be a reasonable accommodation.

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