Intermittent leave legally required??

jennifer jo · March 2004

I have been researching and have found differing opinions. I would appreciate yours! Here's the story: EE fell down in Oct. Was released to work with no restrictions. In Jan. he complains of neck pain. Supervisor sends him home, tells him to go to the Dr. I send out FMLA paperwork (he's my malingerer) and he returns it. Now he knows that I am running his FMLA concurrent with his Worker's Comp. Here's the rub. He wanted to return to work half time the first week in March. We said, "ok". All he did all week was tell the supervisor how much pain he was in and how much pain medication he had to take at the end of the day. We met with him on Mar.5 and told him that we wanted him to go home, see his Dr. and bring another release to work. He called today to say that he could return to work half-time effective yesterday. (That's my kinda guy). Do we have to grant his request for a reduced work schedule since he's out due to his own serious health condition? I'm getting differing views...thanks!

sonny · March 2004

I'm confused, maybe you can clarify. .how are you running his FMLA concurrent with WC if he was released to work full duty?

SDDCHR · March 2004

In addition to Sonny's question, is this a work related injury? You said that he's out for his own serious health condition?

jennifer jo · March 2004

[font size="1" color="#FF0000"]LAST EDITED ON 03-23-04 AT 04:48PM (CST)[/font][br][br]Sonny, he was released, but only to work half-time. As I said, all he did was complain about his pain. I contacted our attorney and he recommended that we keep him out totally until he was released by the Dr. to work full-time. I'm a little concerned. Can we refuse to let him come back half-time?

And yes, it is a work-related injury. The Worker's comp carrier says it is a serious condition. He broke a vertabra in his neck.

lnelson · March 2004

Since it is a work related injury and sounds serious I would follow what your attorney stated and have him off work until he receives a return to full duty.

Unless of course you have modified work that will not cause more injury to the ee.
Does the ee have to wear a neck brace? Does he need to bend, stand, pick up things, twist or stretch? If yes to any of these questions keep him off work.

jennifer jo · March 2004

His job is very active. It was funny, when he came to work without a neckbrace one of his co-workers asked him if he shouldn't be wearing one. The very next day, he showed up with one on. Ironically, he's a nurse! Thanks for the advice.

SMace · March 2004

I'm unclear as to why you wouldn't want to bring him back. You want to pay him WC for doing nothing? Why don't you get some work out of him? Generally people return from WC faster when they return to some type of work. Do you have light duty jobs for him? Running FMLA concurrent is fine, but I would keep it out of my mind and follow your return to work procedures for WC.

lnelson · March 2004

[font size="1" color="#FF0000"]LAST EDITED ON 03-24-04 AT 11:23AM (CST)[/font][br][br]SMace -
Normally I agree that an ee should be put back to work in any capacity but from the sound of this ee's injury I would not chance the possibility for further injury.

The poster stated a broken vertabre in the neck.

What modified duty would you request?

Lisa

SMace · March 2004

He can come back to full duty 1/2 time but can't perform light duty full time? Anyone at our company that could do full duty part time could most certainly do light duty full time. I would think that would apply to most companies.

jennifer jo · March 2004

I realize that I've sounded pretty heartless...Typically, I advocate strongly for return to work and light duty programs, but in this case, I have too much history with this ee, especially in the area of worker comp claims. This guy falls down every three months, there are never any witnesses and he always has to get narcotic pain killers (which he openly discloses to everyone). I spoke with the Claims Adjuster regarding the ee's history and it seems that's about all I can do. I find it odd that he fell in Oct., but the injury to his neck wasn't discovered until Jan. Anyway, he's one of those ees that I just can't trust to be honest or sincere. So keeping him out seemed like the best way to alleviate my concerns and reduce any further company risk.

Well, I think I've found the answer to my original question. When the ee called me and said he wanted to return half-time, I was looking through my research materials and found the sentence that said that ees' are entitled to reduced work hours/intermittent leave to care for their own serious health condition or for a qualifying family member. Before I thought the ee and employer had to agree to the intermittent or reduced work week. I called the attorney again and he agreed with this opinion.

Thanks for your advice!

Intermittent leave legally required??

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