It’s a good idea to keep careful track of the reasons why employees take
Here’s why: Employees are entitled to return to the same or substantially similar positions following leave. If they don’t get back their former jobs, they may sue, alleging interference with or even retaliation.
But sometimes the reason for the absence may affect which position the employee can return to. For example, if an employee can return to work but must avoid some hazards because of a medical condition, you may want to place him in a different location.
Recent case: Winfred Howard worked as an operating room technician when he developed post-traumatic stress disorder (PTSD) after reacting negatively to blood and the smell of burning flesh. He got intermittent and other FMLA leave based on the diagnosis and eventually left the job.
Howard was rehired for another position a few years later and, this time, got FMLA leave for a backache following an auto accident. When he returned to work, he was placed in a spot close to the operating room and started to experience psychological problems.
He sued, alleging that his placement near the operating room amounted to retaliation for taking FMLA leave.
The court tossed out the case. It reasoned that the hospital couldn’t be expected to take into consideration an old FMLA request when the current one said nothing about PTSD. (Howard v. Inova Health Care Services, No. 07-1885, 4th Cir., 2008)
Final note: Of course, the lawsuit could have been avoided with a check of the records. It might have been possible to anticipate problems with an assignment so close to the operating room.
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