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October 28, 2010

George and His Return to Work – Redux

Filed under: Employment Law — Chuck @ 1:00 am
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Remember George? He works for HugeCo. He had to take a leave from work due to a slip and fall at home. His doctor said he could return to work. HugeCo said “not so fast”, and demanded that he undergo and Independent Medical Exam (IME) with a report that he could do 100% of his job duties before he came back.

George’s lawyer advised him, and HugeCo, that requiring an IME, when George’s doctor had already certified his return to work, violated the Family and Medical Leave Act.

HugeCo’s in house mouthpiece said “Aha, but the ADA says we can require an IME before George returns to work.” And the company is right (well, maybe). The ADA does allow for an IME when there is a legitimate reason to believe that an employee cannot do the duties of the job. The examination must be focused on the specific condition at issue. And, finally, the decision to do the examination must be consistent with a business necessity.

Whether HugeCo had a legitimate reason to believe that George couldn’t do his job will be based on the medical facts and the specifics of his job.

HugeCo had to tell the doctor doing the IME that he was to limit the examination to the condition at issue – here George’s back. The Doctor is not allowed to check George’s psych records or inquire into his eyesight, or other conditions that are unrelated to his back

Finally, HugeCo’s decision to have the IME conducted needs to be consistent with business necessity. A consistent policy related to the job must exist. Here is where George’s lawyer jumps back up. HugeCo has no written policy about return to work IMEs (or any other reason for an IME). George knew, in fact, that other warehouse workers had injured their backs (some far worse than George) and none had been required to undergo an IME to come back from an injury leave. HugeCo has trouble on its hands.

Chuck from Watson Law, LLC

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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