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Tennessee employee on light duty

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  • Tennessee employee on light duty

    I have an employee on light duty for a few months who is not getting better, but I don't have a job for her anymore. She never took family medical leave. Can I separate her or do I have to offer her family medical leave first? She is non-exempt and I just do need what she's doing anymore so a waste of money but not sure about the fmla.

  • #2
    Does she qualify for FMLA? However; you can terminate an employee who qualifies for
    FMLA if you would have terminated them had they not qualified for FMLA.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    • #3
      It is not up to her to ask for FMLA - it is up to you to provide those protections. If you, she, and the medical conditions all qualify for FMLA, you are in violation of the law if you to not at least provisionally implement it.

      So, do you have the requisite number of employees? Has she worked the requisite hours and months? And how much time has she already missed?

      When you say, you do not have a job for her any more, do you mean that her position would have been eliminated regardless of whether she was on leave or not?
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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      • #4
        I have an employee on light duty for a few months who is not getting better

        Is the light duty work due to a worker's comp injury? If not, what is the reason for the change to light duty?

        What does light duty mean at your company? Is she full-time on a different job, or is she working part-time on her original position?

        If she qualifies for FMLA, you cannot apply the time off work retroactively to FMLA (if any). You would need to apply it going forward.

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        • #5
          I would start by getting updated information from the doctor. What the exact restrictions are, how long they should be in place, etc. If it comes back that she is never going to be able to return to her regular job, then you need to look at what is reasonable. Is there another job she can transfer into? If not and there are no accommodations to allow her to work, separation might be your only option.

          If you don't have light duty but a leave would allow the employee time to heal or potentially heal/ seek other treatment, you would put them on FMLA.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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          • #6
            To be eligible for FMLA, the employee must:
            have worked for a covered employer for at least 12 months (do not have
            to be consecutive);
            have worked at least 1,250 hrs. for the employer in the 12 months
            immediately preceding the leave;
            work at a location with 50 or more employees within a 75-mile radius;
            & the employee (or a qualified beneficiary) has a serious health condition
            as defined by the FMLA statute.
            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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            • #7
              Originally posted by J.J. Brown View Post
              If she qualifies for FMLA, you cannot apply the time off work retroactively to FMLA (if any). You would need to apply it going forward.
              That's not necessarily true, J.J.. See Ragsdale v. Wolverine.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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              • #8
                I agree with cbg.

                Dandi54, as cbg asked previously, we also need to know besides the questions I asked re FMLA how much time the employee has already
                missed & when.

                Thanks.
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                Comment


                • #9
                  Yes, the ee is eligible (covered) based on the qualifications but has not taken any in the rolling period. The problem is that I have no viable function for her to perform in the job group she had before her comp injury. I could think of transferring her to another type of job but don't know if this is necessary. She is current working full hours on an alternate job which I no longer need but she's been doing this in the mail room for 18 months. I'm wondering if when I terminate her, she can file for FMLA and stay out for the 12 weeks.

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                  • #10
                    That isn't how it works.

                    If you legitimately do not have a job for her and you can show that you would not have had a job for her regardless of whether she was on medical leave or not, then you can legally terminate her. FMLA is not a get-out-of-jail-free card that she can hold and use to trump your termination regardless of circumstances. But if she qualifies for FMLA then you should have been applying it, at least provisionally, for any qualifying absences regardless of whether she applied for it or not. Unlike the ADA, where the burden is on the employee to self-identify, with FMLA the responsibility for determining FMLA is yours - it is not her responsibility to apply for it.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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