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Injured worker insists on waiting for treatment

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in FMLA Guidelines,Human Resources

Q. An employee told us he has a bad hernia. He wants to wait a couple of months to have an operation, since the surgery requires a six-week recovery period. He does some lifting in his job. Yesterday, he went home early because he was in pain. Now that we are aware of his condition, what’s our liability? And what should we do?

A. First, you should report the injury to your workers’ compensation carrier. Second, the employee has provided sufficient information to place you on notice that he may have an injury that qualifies as a serious health condition under the FMLA. In addition, he may qualify for short-term disability (STD).

You should provide the employee with information about your FMLA and STD policies, and follow the procedures (for example, getting medical certification) to determine whether the employee qualifies for such leave.

If the medical certification suggests that there is any urgency to having the surgery, you should permit the employee to take leave without waiting a couple of months. In addition, the employee may qualify for intermittent FMLA leave to cover days when pain prevents him from working.

Finally, you should also consider whether the employer has a disability under the ADA. If so, you may have an obligation to reasonably accommodate the employee by, for instance, not requiring him to lift anything heavy.

Note: Temporary conditions are not considered disabilities—so if surgery can correct the employee’s hernia, it is probably not a disability.

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