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As I discussed in my prior article, both employees and employers have incentives to return an injured employee back to work as soon as medical and reasonably possible. However, often times, the return to work issues are clouded or disputed. One practical example is when an injured worker believes he or she is not physcally capable of returning to work despite medical clearance by the authorized medical provider. If the injured worker is able to convince his/her family physician or another medical provider that he/she needs to remain off work, the worker may have certain protections guaranteed by federal law that must be considered and honored. One of those federal protections is the Family and Medical Leave Act (FMLA).
Pursuant to the Family and Medical Leave Act, employees may be entitled to unpaid leave without adverse employment consequences under certain conditions. If an employee qualifies for FMLA leave, an employer may be obligated to provide the employee additional time off despite clearance by an authorized medical provider for the employee to return to work.
From a practical standpoint, both the employee and the employer should understand their respective rights and obligations under the FMLA. An employee is entitled to take up to 12 weeks of unpaid leave as a result of a serious personal health condition. The employer can and should require medical documentation or excuse for taking this leave. However, as noted above, if the employee is able to obtain a medical excuse to remain off work from his or her personal physician or another medical provider, the employer must determine whether the requested leave qualifies for FMLA protections.
If the leave is protected by the FMLA, the employer must provide the necessary leave up to 12 weeks. However, providing FMLA leave does not require payment of wages or worker's compensation benefits during the leave period. Pursuant to Iowa Code 85.33(2), the employer is entitled to extend an offer of light duty work to the employee. The offer must be reasonable, consistent with the medical restrictions of the authorized medical provider, and must not be unduly inconvenient or degrading. Employees should not be expect to "sort bolts" or other meanial tasks, unless this is a legitimate work task that is required to promote the employer's business objectives.
However, if the employer has light duty work that is reasonable and consistent with the medical restrictions offered by the authorized medical provider, the employee is obligated to accept that work or forfeit weekly benefits. See Iowa Code section 85.33(2). Therefore, it is important for both employers and employees to be educated and understand their respective rights. While an employer may have light duty avaialble, refusal of that light duty assignment is not grounds for termination or other disciplinary action if the employee is entitled to FMLA leave.
However, an employer must understand its obligations and whether the FMLA applies to a given situation. As West Des Moines attorney, Rush Nigut, points out an employee has certain risks and may be obligated to provide benefits not otherwise legally obligated to provide if they do not understand and protect their rights before an FMLA question arises. This topic is thoughtfully pondered by attorney Michael Fox as well. Accordingly, if you have any questions about whether an employee qualifies for FMLA leave, you should consult your corporate counsel.
Posted by William H. Grell on December 20, 2007 6:35 AM
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