FMLA & ADA
CindyG
44 Posts
[font size="1" color="#FF0000"]LAST EDITED ON 06-21-05 AT 10:10AM (CST)[/font][br][br]Our part-time Custodian who works 25 hrs/wk and satisfies the requirements under FMLA (been with us over 4 yrs & worked over the 1250 hrs in the past 12 months) has told me that he's getting hip replacement surgery next month. His job is walking and emptying trash bags, which he is telling me he won't be able to lift the bags even after recovery from the surgery. I informed him of his FMLA rights and I was clear in asking him that he doesn't feel he can return to his job and perform the essential functions of it. He said he understands if I hire someone else, but would like to come back and perhaps do some light office cleaning. We currently have an outside cleaning agency doing that.
He's saying two things: "Go ahead and fill my position, but hope you have a place for me when I recover." My thought is to ask him to sign a waiver of us holding his job for him for 12 weeks because he's already told us he can't return to it. He's hinted that he may want to return (this is his 2nd job; he's a Custodian FT somewhere else) but should I say he can reapply when he's ready? I don't have to offer him a job that's already being done by someone else, correct? I also don't want to hold his position open when he's already said he can't do it. I'm asking your opinions on whether you think the company is obligated to hold his job open for him, only to have him reaffirm that he can't do the job at the end of 12 weeks. How would you suggest I word a waiver or statement for him to sign saying he will not be returning to this job?
I appreciate your feedback!
Cindy
He's saying two things: "Go ahead and fill my position, but hope you have a place for me when I recover." My thought is to ask him to sign a waiver of us holding his job for him for 12 weeks because he's already told us he can't return to it. He's hinted that he may want to return (this is his 2nd job; he's a Custodian FT somewhere else) but should I say he can reapply when he's ready? I don't have to offer him a job that's already being done by someone else, correct? I also don't want to hold his position open when he's already said he can't do it. I'm asking your opinions on whether you think the company is obligated to hold his job open for him, only to have him reaffirm that he can't do the job at the end of 12 weeks. How would you suggest I word a waiver or statement for him to sign saying he will not be returning to this job?
I appreciate your feedback!
Cindy
Comments
You don't have to create a position for him when/if he returns. I would give him the FMLA paperwork and put him on leave. When his 12 weeks are expiring, or when the doctor indicates that he can return to work, send a copy of his job duties to the doctor and have him/her review them. If he says that the ee can perform those functions, then the ee has to come back or face disciplinary action. If he cannot, you can release when the FMLA leave expires (unless you have additional disability leave, etc. that you generally allow ees to use) knowing that you have complied with the intent of the FMLA and have an affirmitive defense. I think what you want to do could be argued as FMLA interference and I would hesitate to expose my company to that liability.
Edit:
He cannot dictate in what position he is to return to. The FMLA is clear that an ee is to return to the same or similar position, with same pay, benefits, etc. So you are coorect that you are not obligated to place him wherever he chooses.
Good luck!
James Sokolowski
HRhero.com
I agree if he needs a cart to ride in etc. and it is not a hardship for your company, and he brings up the accommodation issue, I would do it. If you have to pay someone to follow him around and lift trash bags out of the cans, I don't think it is reasonable to pay two people to do the job (unless it is a small portion of his required duties. If it is an essential part, I would document it and send him on his way). I still believe that proper communication with the doctor (giving the job description and asking if the ee can perform the essential duties) is going to be the best indicator of whether this ee is able to continue his employment, once his protected leave has expired. You can do this without ever knowing the specifics of the ee's impairment. He can either do the work, or he can't.
I don't want to violate the FMLA laws, but the employee has told me to go ahead and fill the position because he thinks lifting the bags would be out of the question for him in the future. Couldn't I just document this and have him sign something rather than being in limo for 12 weeks, only for him to say the same thing?
Would it be best to cover myself by having him get his doctor to certify this in advance? Or is having the employee state this enough? It sounds like you're thinking he could come back on us later saying we didn't uphold his FMLA rights?
Thanks,
Cindy
We cannot use "The ee told me to do it" as a defense. We have to assume that they do not understand their rights, or the responsibility of the er. We have to follow the guidelines in spite of what the ee wants or says. That is the only was ou have an affirmitive defense. It is not uncommon for someone to change their mind about something. What happens if he loses his other job. Now he will need the job at your company and need to supplement his income. May make him change his story. It is an inconvenience, but cover yourself and your company. Again, I don't think you can have him waive his rights, even with approval from the Dr., if there is no other alternate resolution process (such as an arbitration agreement). Too me, there are just too many variables here.
Tell the ee that his leave is granted, that when he is able to return to work, you will give him a copy of his duties to discuss with his doctor, and that you will need clarification as to the duties he can/cannot perform. At that time, you make the decision. Can he do the job or not? He will be able to work (probably), and unless he is limited in another major life activity, he will not meet the standard for a qualifying disability under the ADA.
I definitely believe he could come back and say you violated his FMLA rights, if you proceed as you have posted. It is not uncommon for ees to change their mind or story. That is why you want to make sure you follow the intent of the FMLA, or any other employment related law/statute.