HR professionals, do you know what to do if an employee extended their Workers’ Compensation Leave and has Exhausted their FMLA?
We are going to use an employee named Tanya as an example…Tanya has extended her Workers’ Compensation Leave and Exhausted her FMLA.
The Problem:
Tanya keeps providing a new medical certification indicating a need for continued leave, every 30 days.
She is also protected by Workers’ Compensation, in CA.
How long do we have to let this leave go on once FMLA/CFRA has expired?
The Solution:
When Tanya submits her next leave request certificate extending leave, ask Tanya to cure the medical leave using our ADA/FEHA Curing Request letter. FD1206 ADA Medical Certificate Clarification Request – Good Faith Meeting Letter – Workers’ Compensation.
This document will let Tanya know she needs to ask the medical provider to identify their “best estimate” of a Return To Work (RTW) date that is reliable, or you may no longer be able to provide leave as an accommodation because the continued extension of leave is Unreasonable and an Undue Hardship because Tanya is not returning to work and performing the essential job functions at the end of the leave.
I am NOT suggesting you send a letter ending then approved leave as an accommodation, make sure you do the following:
Ask the EE to cure the medical certificate by asking the medical provider to confirm their best estimate of when the EE will actually be able to RTW, including all waiting and recovery time,
Informed the EE, in a Good Faith Interactive Meeting, that continued requests for extending the leave are Unreasonable and causing an Undue Hardship because the EE is not able to RTW and perform the Essential Job Functions at the end of the leave, and
DOCUMENTED on the Undue Hardship Analysis Form why it is Unreasonable and an Undue Hardship to provide continued leave because the EE’s continual ongoing extension of leave is demonstrative of an unreasonable, unreliable, unpredictable attendance request, and
Most importantly, that you have documented all of the discussions with the EE on the Good Faith Meeting form, and made sure they signed the document at the end of each Good Faith Meeting.
As you can see…it really is not hard to avoid litigation or handle these types of situations, you just need the tools, resources, training, and process in place to guide you.
Thank you for your attention - be sure to check out LMS’s Integrated Medical Leave and Accommodation Management System™
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In The Trenches
By HR - For HR
The Ultimate Guide to California Medical Leaves and Accommodations, and Handling Performance Management and related EEO Harassment, Discrimination and Retaliation Challenges
Over The Last 20 Years, We Have Had 100’S Of HR Professionals, Consultants, Benefits Specialist, Attorneys And Even Doctors To Our Coaching/Mentoring/Training Sessions. PDL, FMLA/CFRA, ADA/FEHA, PFL, SDI, PFL, And Workers' Compensation As Well As Strategies For Handling Performance Management And Related Harassment, Discrimination And Retaliation Complaints From Protected Employees.
