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Try to offer same job to returning worker, not just same title, salary

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in FMLA Guidelines,Human Resources

Linda Cooper operated a locomotive, but when her personal problems pushed her into depression, she was forced to take a series of leaves of absences.

Eventually, Cooper's doctor cleared her to return to work, but the company's medical director wasn't ready to let her drive trains just yet. While she waited for the director's approval, Cooper was assigned to such duties as answering phones. However, she kept the same job title, salary and benefits as her former position.

Co-workers questions' about why she wasn't driving the train were humiliating, Cooper said, and she suffered a relapse. After more leave time, her doctor again cleared her to return to work. While the company's director delayed contacting her physicians again, Cooper was put on the phones at full title, pay and perks.

Cooper sued her employer under the Family and Medical Leave Act (FMLA), claiming she hadn't been reinstated to the same or an equivalent position upon her return from leave. The employer argued that because Cooper retained the pay, benefits and title of a locomotive engineer, she had been properly reinstated.

But a federal appeals court sided with Cooper, saying an equivalent position must involve substantially similar duties and responsibilities, equivalent skill, effort, responsibility and authority. (Cooper v. Olin Corp., No. 00-1465, 8th Cir., 2001)

Advice: You can insist that employees receive unambiguous medical clearance to return to work, but you cannot require that the clearance explain the employee's condition in detail. If you have questions about the clearance, ask for the employee's permission to speak to her doctor.

Olin lost on appeal because it did not, or could not, get Cooper to agree to work light duty, and its medical director let the situation fester instead of resolving it quickly.

Don't give up on the notion of light duty. Except in the unusual case, like this one, where the employee claims to have been further injured by the humiliation of not returning to duty, there are no damages under the FMLA if the light-duty position has equivalent pay and benefits to the former position.

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