Workman's Comp and FMLA

jerkyguy

WE have an employee who is on light duty. Her injury is not incapacitating nor is it certified. She started working on night ##### because her daughter needs someone to be home when she gets home from kindergarten. In two days we will have no more light duty to perform on the night shift. Can she request to take FMLA leave at that time or can we assume it is a voluntary termination if she does not report for her regularly scheduled day shift?

mets

I assume from your post that she is on light duty due to a workers comp injury-
if there is no further work for her on 3rd shift, then it will be necessary for her to move to first shift if she wants to continue working. It doesn't sound like the injury qualifies under FMLA- if there is no job available other than first shift, then that would be all you can do for her. There would be no obligation to create a position. While I agree it would be better if the third shift job continue until she was totally cleared for regular full-time duty, but you can only offer what is available- if she doesn't accept, it will be her call to pursue through unemployment officials- she may be entitled to receive UI.