Just a Lawyer in Lincoln's Hometown

October 25, 2010

George and his Return to Work.

Filed under: Employment Law — Chuck @ 1:00 am
Tags: , , ,

Let me introduce George, an employee for many years at HugeCo. George’s doctor gave him a off-work slip due to the acute back spasm caused by a slip and fall at home. George clearly could not work at the time (after all he was on major drugs and could not move almost at all – not a good thing for a warehouse worker), but did not have a long-term, chronic back problem. George asked for and received FMLA leave. While on leave George called in and complied with HugeCo’s leave policies.

After a week, the spasm was gone, and the doctor gave George a Return to Work slip, and a medically supported statement that George could do his job. But HugeCo would not let him come back to work. Why? HugeCo said he needed to undergo an independent medical exam (IME) to show he was able to do 100% of his job duties. (George’s supervisor, Bruno, had other, more nefarious reasons; but more about Bruno later.)

Does George have to take part in the IME? Probably not!

When HugeCo demanded the IME it violated the Department of Labor rules governing FMLA leave. The FMLA regulations state that an employer may require that the employee give certification of the ability to return to his or her job, but the employer may NOT keep an employee off work to have its own doctor provide the certification.

The careful employer will let George come back to work with even an unsupported return to work slip. An aggressive employer will require a fully compliant certification. But an employer that wants its own doctor to certify, has stepped over the line (unless authorized by state law or the ADA, more on this later).

HugeCo has left itself open to a complaint that it is interfering with George’s FMLA rights. George may have a claim.

Chuck from Watson Law, LLC

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