October 06, 2020
One Wee Error Leads to Double Trouble
An employee injured her foot at work. The employer offered the employee temporary, light duty and she accepted. So why does she sue and the court agrees that her employer may have engaged in (1) FMLA interference and (2) violations of the Americans with Disabilities Act (ADA)?
The light duty job required, among other things, that the employee work in the “wee hours of the morning” and at a location further from her home. Since her foot was injured, she could not drive, and public transportation was not readily available. When the employee was subsequently absent, she was fired for excessive absenteeism
FMLA Interference. The employee called out every day she was absent. But she may not have called the correct department. The court found the call out policy was confusing; she was to call two different departments, one for her workers’ compensation claim and another for her leave of absence.
If she had not accepted the light duty, she would have been required to sign a form that indicated “my benefits could be suspended or denied due to noncompliance.” The FMLA gives an employee the right to decline FMLA leave. While her workers compensation benefits might cease, she would retain the right to her FMLA benefits.
ADA Violations. The employer did not engage in an interactive dialogue. The employer did not ask her what she needed to get to work, offer any suggestions such as placing her on a leave of absence (as she has requested), or assign her to work at her original location that was closer to her home.