FMLA - return to light duty after FMLA
Posted: 11 February 2010 06:07 PM   [ Ignore ]
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We have an employee who’s requesting a “shortened” shift and light duty when they return from FMLA.  The shortened hours ( those not worked) will be counted as FMLA hours.
 
Our problem is that this employee handles a public desk.  The short shift is typically 4 hours.  They want to work only 2 hours.  We would then be required to impose a hardship on another staff member by scheduling them for only 2 hours on the desk.  For the remaining 2 hours of the returning employees shift they would like “light duty” assignments.  We aren’t even certain that we have 2 hours of light duty every shift that we could assign.

Legally,  do we have to allow them to return to work since it’s not in our best interest and will create a hardship for other employees?

Thanks.

[ Edited: 12 February 2010 10:09 AM by Patrick Della Valle ]
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Posted: 12 February 2010 11:33 AM   [ Ignore ]   [ # 1 ]
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Good that situation description points out that employee has returned from FMLA and is not on FMLA.  A central issue is work light duty.  Therefore despite the title given to the inquiry, this is not an FMLA issue.  As was stated by the 7th Circuit in Hendricks v. Compass Group, USA, 496 F.3d 803 (Ind. Ct. App. 2007) “there is no such thing as FMLA light duty.”  So, we need to look at ADAAA.  Is this a disability issue?  Not enough information is given as to fully consider this. However, assuming that a possible ADAAA issue does exist, two points come up.  First, consider the EEOC approach to light duty as an accommodation for an ADAAA qualifying disability. The EEOC does not consider light duty as a per se required accommodation under the ADAAA. On the other hand, a disability may entitle an employee – with a non-work related injury – to be placed in a light duty position that was established for work related injuries.  We don’t know how this applies to the situation in question.  However, we must also consider the second point, “undue burden.”  This could be the key element.  An employee’s expectation of an accommodation consisting of working only half of a typical shift appears on its face to be an undue burden for the employer.  This is emphasized by a significant shifting of work burden to other employees.
Stanley P. Santire
Santire Law Firm

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Posted: 12 February 2010 11:45 AM   [ Ignore ]   [ # 2 ]
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It is my understanding that if the employee has exhausted or returned to work after being certified by his/her health care provider that he/she no longer needs to be on Family Medical Leave, you are not required to provide light duty assignments. If the employee is not able to perform an essential function of the job upon return or if the employee requests a change in shift, schedule, or position that better suits his/her personal needs, you may not have to restore the employee back to the old or equivalent job.

However, there may be ADA implications you’ll want to consider. Has this employee been directed to work with your ADA procedure? This may help both of you decide if the requested accommodation is a hardship and if there are any other accommodations you can make instead.

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Posted: 12 February 2010 12:25 PM   [ Ignore ]   [ # 3 ]
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I appreciate your responses.

It really is still FMLA, but it’s now a request for intermittent FMLA leave.  The return to work certification from the Doctors is for reduced hours and restricted activity.  It’s presumed by the Doctors that this adjustment to work and schedule is temporary until recovery is complete.  Unfortunately no time line is given for this recovery and we will have to ask for recertification in 30 days.

Both the reduced hours and light duty will cause issues for other employees.  We are considering offering a different position until the restrictions are lifted by the Doctors.  However, we believe it will cause some grumbling from our employees who will be asked to take over shifts and work that they don’t routinely perform and in a department that is not their own.  Our handbook states that employees may be assigned to any department. 

The question isn’t ADA, but FMLA related because if the employee can’t perform the tasks that are part of their normal job and work even half the hours of their normal shift,  does the employer have to allow them to return to work?  This is going to create a scheduling nightmare with a considerable impact on staff.

Again, thanks for your replies.

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Posted: 12 February 2010 12:39 PM   [ Ignore ]   [ # 4 ]
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In our agency, when we don’t have light duty work for the person to perform, the employee doesn’t come back to work until they are released to full duty.

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Posted: 12 February 2010 03:05 PM   [ Ignore ]   [ # 5 ]
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There’s no “undue hardship” (e.g., ADA) defense to FMLA eligibility. And (unlike the ADA), you can’t consider the burden on other workers.

The law presumes if you’re covered (50+ ees) and the employee is eligible (50 co-workers within 75 miles), your company is big enough to provide coverage for employees absent due to FMLA reasons.

And FMLA may be taken intermittently when needed for medical reasons.

There’s no FMLA duty to create a new job; the FMLA obligation is to return the employee to their old job. Still, the FMLA does permit accommodating requests for reduced duties or hours.

Bottom line: properly designate and track FMLA use; always let eligible employees use it; comply until their time is expired. For more suggestions, a nice article just appeared at http://www.mcafeetaft.com/NewsResources/AttorneyArticles/Articles/RidingHerdonFMLAAbusein2010.aspx

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