FMLA, Workers Compensation and ADA
Question: I have an employee who has been out on worker’s compensation since 6/16/05 due to an OJT accident. She was released to part-time duty 9/23/05 and is still only working 1/2 days. She has exhausted her FMLA leave. How long must we keep her on w/c status as a pt worker when her position requires full-time capability. Her position is that of sales trainer and we are now reaching critical mass in our training requirements as well as needing to hire additional staff to handle our training requirements. Please advise. Thank you.
FROM: BONNIE
INDUSTRY: RESIDENTIAL BUILDERS
RESPONSE:
Bonnie,
You are under no obligation to return this person to the same job if she was released to return to work on a part-time basis. Even with FMLA, if the individual is on a reduced schedule leave, you have the option of transferring her to another position during the period of time she is on the reduced schedule.
Look within your workplace to see if there is another job she can do that is not as critical as the one she holds now and transfer her to that job. Since she is a sales trainer, can you have her put together the material and schedule the training sessions while having another employee do the training? Look at re-arranging some of the functions others do to see if there is an opportunity to have her add value while giving the actual training duties to another individual.
If nothing is available in the sales training department, look at another department within your organization where she can do part-time work.
Under workers’ comp rules, you are also under no obligation to hire her for light or part-time duty if you do not have that type of work available. The problem with this is if you tell her you only have full-time work available and she cannot work a full-time schedule, she will receive more in the form of workers comp payments, which you will pay for in higher premiums later.
Now that her FMLA has expired, you do not have to offer her the same position if she is not able to perform the essential functions of the job – being available for a full-time schedule sounds like it is essential to your business.
Sometimes, you have to be a little more creative in coming up with ways to make these situations work for you.
I hope this helps. Let me know if I can be of additional help.
Thanks for Asking Bob
Bonnie’s Response:
Thank you so much for your quick response, it is very much appreciated. You’ve given me some excellent information to enable us to move forward with our planning for the New Year with our training department.
Have a great holiday season and best regards,