We often see issues related to the Americans with Disabilities Act (ADA), which covers employers with 15 or more employees overlap and run concurrent with FMLA issues. The answer to this question would be “Yes” under the ADA so long as the light duty position was a “reasonable” accommodation. The FMLA regulations provide no express, affirmative obligation on the part of the employer to create or provide a light duty role. If one is available, however and your employee works the light duty job the time spent working in the light duty job is not counted as part of the employee’s FMLA leave, even thought the employee is technically absent from or not performing his or her regular job.
Some other issues addressed by the courts in recent months have included:
1. Can an employer require an employee to submit to a fitness for duty exam before returning to work from FMLA leave? (the answer might surprise you)
2. If an employee is otherwise eligible but does not want an absence to be counted as FMLA covered leave can the employer require the employee to use FMLA leave?
3. If the employer fails to provide the employee with the required Notice of Eligibility and Rights or the Designation notice to what penalties, damages or fines might the employer be subject?
