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Agree if returning worker proposes new exam

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in Employment Law,FMLA Guidelines,Human Resources

Employees who take leave because of a disability may be entitled to a reasonable accommodation when they return to work. But, as an employer, you have the right to decline an employee’s return if you genuinely believe she won’t be able to perform her job.

But if the employee proposes undergoing a medical or psychological exam to prove she is fit to return, cooperate. Otherwise, your refusal to consider her offer may be seen as failure to engage in the interactive accommodations process required by the ADA.

Recent case: Diane Rambacher was working as a computer coordinator for a school district when she became depressed and had to take a medical leave of absence. After seven months off, she and her psychiatrist said she was ready to return.

The school district was reluctant to allow her back, claiming she wasn’t fit. She offered to undergo a medical examination with the school district’s choice of doctors. The school district refused and instead offered her a library aide job paying half what she had made before.

She sued, and a district court dismissed her case.

She appealed to the 2nd Circuit Court of Appeals, which reversed the lower court and ordered a jury trial. The appeals court reasoned that a jury should decide whether, by rejecting Rambacher’s offer, the school district had refused to make or consider a reasonable accommodation. (Rambacher v. Bemus Point Central School District, No. 07-4728, 2nd Cir., 2009)

Final note: It’s important to consider whether an employee who has been on FMLA leave may also be disabled under the ADA. If so, you may need to consider giving an employee more time off. That’s because the ADA’s reasonable accommodations requirement may call for granting more leave than the FMLA mandates.

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