Placing Employee on FMLA Involuntarily

Okie Phil

We have an employee who cannot perform the essential functions of his job even with accommodations. This is confirmed by his doctor's medical opinion. My question is whether we can place this employee on FMLA leave without him asking to do so. We can no longer ask the other employees on his crew to continue to carry him. Surgery has been scheduled twice before, but was cancelled due to other medical problems not involved in the FMLA or ADA. He has continued to work and will do so as long as we carry him.

LindaS

If you cannot accomodate his restrictions you are well within your right to place him on FMLA leave. Remember, the FMLA is an ER law, not an EE one, meaning that the ER is made responsible for determining FMLA qualification, not the EE. I have done this on MORE THAN one occasion without issue.

Okie Phil

Linda S.

Thank you. I could not really find anything in the law, but felt I could place him on FMLA. I know if we terminated and did not offer him FMLA, we could have a problem.

Okie Phil

davids

If the employee is requesting time off,yes, the employer can/should designate it as FMLA (if the reason is a qualifying event). However, if the employee is not requesting time off, I am not sure that you can force the employee to take leave unless allowing the employee to work creates a significant safety issue. If the employee is not requesting time away from work then I think you handle this as a performance/ disciplinary issue. Threatening discipline may be the stick needed to motivate the employee to deal with the medical issues.

njjel

If the ee isn't missing time from work then he can't be put on FMLA leave.

HRQ

">We have an employee who cannot perform the
>essential functions of his job even with
>accommodations. This is confirmed by his
>doctor's medical opinion."

He can't do his job, even with accommodation. He doesn't want to stop working, but you can't keep him working. I'd say take him off the schedule, citing his restrictions, offer him FMLA, and he can choose not to accept.

You don't have to keep an employee on the schedule just because HE wants to be on it.

I'm assuming you've worked through the "reasonable accommodations" discussions with the employee already.