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Disabled employee wants to come back before doctor okays it

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  • Disabled employee wants to come back before doctor okays it

    I have an employee who has been out on disability due to a car accident. She has been off work since 9/24/09, approximately 12 weeks. She is a new hire, hired one month prior to her accident. Her doctor has faxed me a note stating she can be released back to work on 1/2/10. But she wants to come back to work now.

    I had to hire another employee to take her place while she is on leave and I'm trying to figure out how to keep both employees once the other one comes back, but I'm not sure I can keep both.

    What are my obligations in this case? Is it legally okay to allow a disabled employee to come back before the doctor allows it?

  • #2
    Since FMLA does not apply, you do not have to return her to her job. Why are you considering her "disabled"?
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      Is it legal? Yes. Is it wise? Not necessarily. Outside of FMLA, which does not apply here, a doctor's note has no force in law. But at the same time, if she were to aggravate her injury by coming back to work before she is medically cleared, you could have some liability, even if only under workers comp.

      Not all, or even most, employees who are eligible for STD benefits are considered "disabled" under the ADA. Are her injuries likely to be completely healed, or will there be permanent (or long lasting) damage?
      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
        The employee is out on disability due to her accident.

        So if I need to let her go because I've hired someone else to fill her position, I am not breaking any laws?

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        • #5
          No you would not be breaking the law. FMLA does not apply in this situation as she has not been employed with your company long enough.

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          • #6
            I understand that she is out due to her accident.

            What I am asking is whether or not the injuries, or the effects of the injuries are considered temporary, long lasting (a year or more) or permanent? It makes a difference whether or not you have any concerns under the ADA. You are fine under FMLA, but FMLA is not the only law that could be in play.
            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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            • #7
              Just to have the information in this thread - I assume your state is Ca. as per a prior thread? (Ca. is where employee works)
              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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              • #8
                You have already done more than the law requires- kudos. If you just simply can not keep both on and or keep extending the leave and longer, you can terminate. Even under ADA you aren't required to keep extending leave or to bring back the employee who was off or has a disability.
                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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                • #9
                  You might still want to answer cbg's question regarding the injuries.
                  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


                  • #10
                    Originally posted by samgingham View Post
                    The employee is out on disability due to her accident.

                    So if I need to let her go because I've hired someone else to fill her position, I am not breaking any laws?

                    You stated here your need to let her GO is because you had already HIRED her replacement. To the court it would look very contradictory if you tried to assert you were upholding the ADA LAW while she was disabled and extended a medical leave of absence due to this disability, YET Hired a replacement and NOW do not want to bring the employee back on DUE to your hiring this replacement.

                    When you hired this replacement, your intent will be looked HARD AT. What accommodation did you REALLY offer the disabled employee by allowing them a medical leave while being disabled, only to discover when they ask to return WITH or WITHOUT a reasonable accommodation you hired someone right after to replace ( hired as temp or permanent, trust me that is KEY) that you don't want to get rid of now. The court will not like how contradictory or how discriminating this appears.


                    Just my opinion.
                    Last edited by LETC; 01-01-2010, 04:10 PM.

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                    • #11
                      We can't assume that ADA applies unless the OP comes back and answers the questions posted about the extent of the injuries involved.

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                      • #12
                        Agree, the OP has still not come back & answered cbg's questions in regard to the injuries.
                        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


                        • #13
                          Originally posted by Betty3 View Post
                          Agree, the OP has still not come back & answered cbg's questions in regard to the injuries.
                          As of 1-1-09 the ADA laws have broadened so much so that most disabilities are covered, but true we did not get an answer back yet from the poster; HOWEVER if we use common sense it is clear to see that the employee was OUT on a disability since 9-24-09 and the treating physician note states the employee can return on 1-2-10.

                          So as stated if we use our brains we can SEE that the employee being totally OFF work due to a disabled state that will more probable then NOT be covered under the ADA LAW.

                          It does NOT matter where the disability originated under ADA, it only matters that there WAS in FACT a disability, the employer acknowledges same as they were acting in a manner to accommodate the disability by allowing a medical leave of absence. Just because they discovered the employee they hired to replace the disabled is more preferable will NOT protect them under the ADA LAW for discrimination. If you read closely my other post all of this should be clear as to arguments that will be made.

                          In contrast to what CBG states and asserts as to my knowledge of the LAW, I am very knowledgeable where the LAW is concerned. These very arguments will be surfaced with the employer should the matter escalate in an unfavorable light to this employee who for all intent appears to have a disability covered under the ADA LAW.

                          For all disability matters no matter HOW they originate and no matter what STATE or FEDERAL LAWS may come into play the LAW/court looks most favorably unto the employee and which LAW affords the employee more protection and time and time again HR specialists FAIL to recognize this thinking that ONLY one issue may LAW hashed out or focused on.

                          Workers comp- FMLA- ADA can cause an elephant to enter a room if the HR reps are not UP on current LAW.

                          Just my opinion.

                          Comment


                          • #14
                            Since it is now 1-2-10, the date employee was to be released to work by her dr., the OP may have made a decision by now in regard to this situation. The OP hasn't posted since they first posted on 12-17-09.
                            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


                            • #15
                              Hiring someone else to do the job while the newly hired employee is out for several months is hardly a smoking gun for ADA violation. Nothing in ADA requires job restoration. Nothing in ADA requires leave either. In some cases a short term leave can be a reasonable accommodation but we don't even know if the EE in this case requested an accommodation or had/has a disability. Employers are not required to keep a position vacant for months to avoid violating the law. Even under FMLA an employer is permitted to fill a vacancy- they just may have to bring the originial employee back to the same or similar spot at the end of the leave. Employers never have to just operate short staffed.

                              Granting leave also doesn't even come close to acknowledging there is an ADA qualifying disability. Not even close.

                              For that matter, even if the employer did choose to retain the newer worker because of better skills or stronger performance, that is not disability discrimination. It is always legal to keep/hire an employee for performance reasons when FMLA is not involved. ADA does not guarantee job restoration even if it would be involved here which we do not know as the OP hasn't been back in weeks.
                              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.

                              Comment

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