ADA/FMLA
MVSarine
4 Posts
An employee recently returned from FMLA with a complete release. However, we have found that he is still having difficulty with his prosthetic (part of the reason he was on leave) and is having difficulty driving related to that (and some vision issues). He has admitted that he is having difficulty driving and the company is trying to work with him in finding a way to have him remain working.
Originally, we had considered having his spouse drive him but she is not an employee of the company and we are not looking to bring her onboard @ this time.
We are now considering: 1) fitting the car so he can drive with his upper extremities or 2) having him work from home as an inside sales rep (v. outside sales rep which is his current job).
A few questions:
1 - Can we get a 2nd opinion on whether he should actually be cleared to RTW (based on the difficulties he is currently experiencing)?
2 - If he is put in a telesales position, he will be paid commissions only. Our Telesales out of HQ are currently paid a salary plus commission. Do we need to worry about the difference in payplans?
Are there any other concerns that I am missing that I should be aware of?
Thank you for your assistance.
Comments
The answer to your first question is that FMLA prevents employers from requiring second or third opinions on
a fitness-for-duty certification (http://www.dol.gov/DOL/allcfr/ESA/Title_29/Part_825/29CFR825.312.htm)
The ADA requires employers to provide a reasonable accommodation to employees with disabilities, unless it would impose an undue hardship. The EEOC views reassignment as a "last resort" option under ADA -- when there is no effective accommodation. If there is a accommodation that would enable the
employee to continue performing the essential functions of the current
position, you must provide it (unless it would impose an undue hardship). The burden for proving undue hardship isn't an easy one to meet.