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karenmc · October 2005

Briefly....full time employee over 40. She sits 8 hours per day at her job. We provided lumbar support per her doctors request after she complained of back pain. She was diagnosed after that with a cracked vertebrae and osteoporosis. She had not worked long enough with us to qualify for FMLA. We have since replaced her with a temp employee and really have no place else to put her. She has been given the all clear to return to work. What issues am I looking at if I tell her she no longer has a job?

crawfod · October 2005

A little more info, please. Has she reported her disability as being work related or non-work related? If you replaced her with a Temp, and she is now all clear to work, why would you not let the Temp go and give her back her old job?

If the Temp is who you want to keep but she is healthy and under 40, I think you're asking for trouble.

karenmc · October 2005

Non work related. She was replace by a young man.

crawfod · October 2005

Okay, that's good for the cause of disability, but what would you tell the Court the reason was to not give her her job back when she was released with no restrictions while on an approved leave of absence, even if not FMLA protected?

karenmc · October 2005

I don't know yet that there are no restrictions. The job requires sitting for 8 hours minimum and the doctor has asked for a job description so he can pick through it and see if there is anything she will not be able to do. All jobs in our manufacturing require either standing or sitting for long periods of time. I'm concerned that with her back issues it will just be a matter of time before she is out again for another extended period of time.

pork1 · October 2005

You need to strengthen your attendance policy words to effect the right to terminate when someone becomes medically disqualified as determined by a physician that someone is under their care. FMLA is only for those who qualify! Those that do not qualify, have "6 weeks" to get well and medically qualified or face a loss of job due to medically disqualfication for the task assigned to the position.

At this point, I would put the person back to work in her old position and decide to have the young man "laid off" or seek a transfer for some other work task for which he is qualified.

PORK

System · October 2005

Just based on the information you've given, and reading between the lines re: the title of the posting, I'd be concerned about possible liability for sex, age and disability discrimination. Talk this over candidly with your company's employment lawyer before you do anything.

Kathy Carlson

karenmc · October 2005

Got a call in to him now. Thanks for all the input.

Shadowfax · October 2005

Her atty's argumment goes: You hired a temp to cover my clients position until it could be determined her ability to return to her position. She now can return, and the only reason you refuse to put her back to work is your concern over the possibility of a future w/c claim. Oh, and you've replaced my age protected woman with a young man. Wanna talk now or later?

HRinFL · October 2005

Without knowing if you have a policy for ees that are out of work for an extended period of time that do not qualify for FMLA (we have a leave that gives an ee up to 12 weeks for their OWN serious health condition as long as they have completed 90 days), I think that by waiting you essentially took away any affirmative defense against an age claim, maybe gender and/or disability claim as well.

If you do not have a policy providing ees that do not qualify for FMLA some sort of protected leave, when you learned that she ha a non-work related injury that required her to miss work, I would have made her absences subject to the attendance policy and discharged her when she exceeded the guidelines. If she did not qualify for FMLA, and you do not offer similar protection for ees that cannot meet the FMLA requirements, you can release them (if the injury in not compensable). But by waiting until she was released, the concerns listed by the others are legitimate. My advice is to see what the doctor says. If she is unable to perform the essential duties of her job, with or without a reasonable accommodation, you can still terminate. I would not make that decision. I would get your attorney involved and I would really LOOK to see if that argument applies. If so, document it and let her go. You will still probably have to defend your actions, but at least you will have a legal argument to base the decision on.

I would also draft a policy addressing non-work related injuries and implement it today. We do not allow ees to work (light duty or otherwise) if they have a non-work related injury because they could suffer additional injury and that would then make us responsible. If they have FMLA, we give it to them. If they exhaust FMLA, or do not qualify, we place them on Disability Leave. Once that runs out, they have ninety days to return without restriction, or they are administratively separated. Transition (light) duty is only for ees that have a work related injury.

crawfod · October 2005

I agree with the others. Get the official doctor's opinion and if you can't accommodate her, perhaps you can charm her into resigning on her own rather than being terminated. I've had that happen a time or two, but generally people don't want to quit even when they know a job is hazardous to their health.

If she's cleared with no restrictions, although your concerns are legitimate, I think terminating her will make you vulnerable to legal actions.

HRinFL · October 2005

I agree that if she is cleared without restrictions, you are basically scre***. Inaction in the beginning by not addressing the absences, etc. have led to a point where whatever action you take is going to be problematic, unless you return her to work. However, since she is not covered under FMLA, you do not have to hold her position, so you do not have the legal obligation to bring her back in the same position, same pay, etc. It would be better if you did, but you are not legally bound to do so. But without a reason, that she cannot perform the essential duties of the job, you are going to get hammered, IMHO.

My comment about letting her go was based on her not being cleared to full duty. At that time, if she is unable to perform the essential duties of the job with or without a reasonable accommodation, you can let her go. The ADA does not have a requirement that you create a position, or move someone into another position. If she can do the job with a reasonable accommodation, you are back at square one. While the reasonable accommodation angle may parlay any ADA complaint, you still have the gender and age concerns. That is why you should consult counsel. Be honest and lay all the cards on the table. They will tell you what you need to do and help identify thngs that should have been in place to keep getting to this point. That is why you pay them. Also, by getting advise from the attorney and following their advice, it is a good argument that whatever decision is made was not due to a protected category. Kepp that layer of protection there.

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