Family Medical Leave

An employee who is covered by FML for Gout is refusing to stand up for any of her shift. The certification states that she should sit intermittantly but not the whole shift. A manager has actually requested if she could stand up so she could show her something new in the work station and she said she didn't have to. Her shift is 8 hours right now and in the job description is states that you are required to stand for the shift. Could we move her to a different position or possiobly reduce her work schedule?


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  • Sounds like the employee took FML leave and has returned to a modified postion/light duty for her certified serious health condition (or possibly a disability). If this is so, you should think about state and federal disability law too.  

    I can tell you the following info on reinstatement (with a lot of help from BLR's website). The FMLA, with a few exceptions, requires that employees returning from leave come back to the position held when leave began, or to an equivalent position, with equivalent employment benefits, pay, and other terms and conditions of employment.

    The word "equivalent" is not necessary that the employee be reinstated to the same job he or she left. However, the "equivalent" standard is more stringent than the standard of reinstatement into a "comparable" or "similar" position. The FMLA regulations explain that an "equivalent" position is one with the same pay, benefits, and working conditions, including privileges, prerequisites and status; and requires that it involve the same or substantially similar duties and responsibilities, substantially equivalent skill, effort, responsibility and authority.

    An employer cannot permanently replace an employee who takes FMLA leave or restructure a position and then refuse to reinstate the returning employee on the ground that no position exists. Further, an employee's acceptance of a different, but allegedly equivalent, job does not extinguish the employee's statutory right to challenge this placement decision.

    Altering an employee's regular shift or transferring the employee to another worksite, even one that is geographically the same distance from the employee's home, may not satisfy the "equivalency" requirement, if it involves a significant increase in commuting time or distance. The new position must be at a worksite proximate in geography and commuting time to be deemed "equivalent." Similarly, transferring an employee to another department may threaten the "equivalency" of the position.

    Hope this helps.

  • The right of an employee to return to work after FMLA leave is contingent on the employee's ability to perform the essential functions of the job (if standing is truly an essential function). Californian is right, an employee who returns and is no longer qualified to do the work because of a health condition that qualififes as an ADA-covered disability may be entitled to reasonable accommodation (such as job modification), but the ADA also does not require that the employer change essential functions.

     If an employer does not have a light duty program, the FMLA does not require the employer to start one. However, the FMLA does allow that an employee can opt for light duty (but the employer can't insist upon it. The employee's agreement to take light duty assignment under FMLA must be voluntary and "uncoerced." (29 CFR Sec. 825.220(d)).

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