Question: We have an employee who is currently on FMLA leave, has a brain tumor, and has been cleared by her doctor to work part time. can we ask the employee to sign a waiver in case anything happens to her while at work?
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Answer: The right to job restoration following FMLA leave is contingent upon the employee’s continued ability to perform all of the essential functions of the job. An employee who returns to work but is no longer qualified for the position because of a physical or mental condition that is a result of a continuing serious health condition, may require accommodation under the ADA.
At times, an FMLA-eligible employee with a serious health condition may be able to return to work, but may not be able to perform the essential functions of his or her job. Employers with light duty programs may offer alternate, available light duty positions to employees who wish to return to work. An employee may return part time as well.
According to the EEOC, an employer may be required—as a reasonable accommodation under the ADA—to reassign marginal functions of a job, but it is not required to reassign essential functions. Please note however, as discussed above, the employee must be a “qualified disabled individual” in order to qualify for ADA protection.
There are several additional issues in this case. The first is workers’ compensation. In most states, virtually all employers must provide workers’ compensation insurance coverage for their employees. Workers’ compensation is a “no-fault” system. Employees receive compensation without having to prove that the employer was at fault for the injury. They need only show that the injury arose “out of and in the course of employment.” This cannot be waived by the employee.
Asking the employee to sign a waiver of his or her workers’ compensation benefits could result in a lawsuit.
Second, is medical certification.
If a doctor has cleared the person to return to work, the employer may ask for more specific information if they feel the medical certification wasn’t sufficient or that the doctor didn’t understand the demands of the job. FMLA’s regulations require that an employer advise an employee whenever the employer finds a certification incomplete or insufficient, and the employer must state in writing what additional information is necessary to make the certification complete and sufficient.
The employer must advise the employee within 7 calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to fix any deficiency. If the deficiencies specified by the employer are not fixed in the resubmitted certification, the employer may deny the FMLA leave.
It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the healthcare provider, and does not otherwise clarify the certification, the employer may deny the FMLA leave if the certification is unclear.
If the medical certification is sufficient, the employer could face an FMLA interference claim for requiring a waiver, which is more than the law permits.
Third, the employee might have a disability discrimination claim for requiring him or her to sign a waiver when other employees returning from leave are not required to sign one.
Fourth, any concerns about the safety of the employee or others in the workplace (i.e., direct threat under ADA) should be addressed by making sure the doctor understands the employee’s job.
Last, we would recommend seeking the advice of a local employment law attorney before drafting any waivers. An attorney can review the legality of the situation and provide you with legal recommendations for remaining in compliance with the law.