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FMLA Question

Discussion in 'Medical Leave & Disability' started by sweettea, Feb 17, 2012.

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  1. sweettea

    sweettea Law Topic Starter New Member

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    My closest friend just went through rehab/detox for prescription medication addiction. She is a hospice nurse that works for a national company. Her full-time employment hours are after-hour coverage over weekends.

    Her doctor has given her a written letter for her employer that she is no longer to work night hours until released from his care. However, she is released to work during day-time hours. She has applied and been approved for FMLA.

    She received a letter from her employer stating that:

    "When you return from famiy and medical leave, you will be required to present a fitness-for-duty certificate before reinstatement, as applicable. If such a certificate is not received, your return to work could be delayed until the certification is provided."

    They are not allowing her to return to work at all until her FMLA is exhausted.
    After FMLA is exhausted, she can only return to work if she can work on-call at nights without doctor prescribed restrictions.

    I know this is her problem and she should be posting. She is in recovery and working very hard and doing very well. I am only helping her to learn and understand if her employer is following the legal guidelines of FMLA.

    Thank you for any responses.
     
  2. army judge

    army judge Super Moderator

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    Your friend should discuss this with her employer.

    The employer is only required to return her to her previous employment.

    I think you're confusing FMLA with ADA.

    Google both and learn about the law.

    Your friend doesn't appear to qualify for an ADA accommodation.

    She might want to investigate other employment opportunities, just in case.
     
  3. sweettea

    sweettea Law Topic Starter New Member

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    Thank you for responding.

    No, she does not qualify for ADA.

    She has discussed this with her manager and has been faced with berating, negative, and hostile resistance. Quotes can be provided.

    She is on FMLA from her employer.

    My understanding is that her employer is required to give her an "equivalent" position and she CAN work now. Her doctor has stated her hours with her current position is a perfect job for an addict and has written his restricted work statement as such that she cannot work over night time hours.

    My question is whether they can deny her from returning to work until she is fully released to work those night shifts?

    I am googling and trying to learn and this is one of my channels.

    She is seeking other employment, going through counseling, AA, etc. Her profession as a hospice nurse is, my opinion, not a good field for her addiction issues. But, I am only trying to understand the law and attempting to help her protect her rights with an insiight to her company's needs and limitations. Her company, somewhat understandably, is showing hostility and resistance.

    Again, thank you for responding so quickly.
     
  4. cbg

    cbg Super Moderator

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    Yes. It is not only legal for her employer to refuse to allow her to return without a fitness for duty certificate, in some situations it might be required.

    An equivalent job means in ALL respects. If she was working nights before, an equivalent job means working nights. It does not mean transferring her to a different shift. If she'd been working days and they'd asked her to work nights, you'd sure be complaining that it wasn't equivalent.

    They absolutely can refuse to allow her to return to work until she is able to work the shift she worked in the past.
     
  5. sweettea

    sweettea Law Topic Starter New Member

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    Thank you.

    Got it and it makes sense.

    Sad though.

    Thanks agan.
     
  6. Disabled Vet

    Disabled Vet Active Member

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    ADA is applied when someone has a disability. I don't know if being a drug addicit is considered a disability. FMLA is time to recover or take care of a love one without fear of losing a job. Your friend is asking for a ADA accommondation to switch to day time shift. Some folks get softer chairs, bigger desks, better lighting, time to get up and walk around, more bathroom breaks, etc... That is where I would search in the ADA section to see if her recovering drug addiction could fall under ADA guidelines.
     
  7. cbg

    cbg Super Moderator

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    Recovery from drug addication can be considered a disability under the ADA. However, the ADA does not trump other laws. She can still be required to remain off work until there are no restrictions. She can still be required to provide a fitness for duty certificate. And EVEN IF eventually a switch to the day shift is found to be a reasonable accomodation, there has to be an OPEN position for her to move into and one for which she is qualified. Under NO circumstances does the ADA require that they create a position for her, bump someone else out of their position to give it to her, or, for that matter, eliminate essential functions of her job (such as the distribution of drugs to patients, for example).
     

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