Human Resource Blog

FMLA

An employee returned after a 12 week FMLA unpaid leave. He was released by his doctor with no restrictions. The company has found that he cannot perform all his original duties of his job. What are our legal options?
Can we contact his doctor? We are concerned something will happen to him on the job.

The FMLA regulations specifically prevent the employees supervisor from contacting his doctor. If you have reason to believe that the doctors release might be a forgery, HR or a member of upper management can contact the doctor to make sure that the note is genuine. You should especially take this step if you believe the employee is a danger to himself or others.

Otherwise, you should treat this like any other performance problem. Sit down with the employee and have a conversation about the fact that he is not meeting the expectations that you have of someone in his job. Document this discussion, and any subsequent discussions. Eventually, if the employee cannot perform his job to the same standard that you would require of another employee, you may have to terminate him.

If the employee has a permanent disability, then he may request a reasonable accommodation under ADA. However, he must be able to perform the primary duties of his job, with the accommodation. And, lowering performance standards is not a reasonable accommodation. Lowering worker safety standards due to a disability is not fair to this employee or to his coworkers.

If the employee is working safely, and your concern is simply that he is overstressing himself or doing too much, if the doctors release is genuine, then you are covered.

Post a more specific question regarding the job and limitations, for a more detailed answer.