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Injured Employee and FMLA Rights


Question: One of our employees injured his back away from work and has been out on disability for four months. We have filled his position with a temporary employee who is doing a much better job and we would like to hire him permanently. The disabled employee’s supervisor did not inform the employee of his FMLA rights. Can we terminate him?

Answer: A recent ruling by a New York district court, in a case that involved similar circumstances to yours, ruled that the Family Medical Leave Act plainly gives eligible employees 12 weeks of FMLA leave per year and the employer clearly was more generous in giving the worker 26 weeks of leave. He was entitled to no more. In the past, the U.S. Department of Labor (DOL) has said the workers would get another 12 weeks if not notified on time. The new court ruling, however, says the DOL’s rule can’t expand the rights employees already have under FMLA.

You must also keep in mind that if the employee is truly ‘disabled’, under the Americans With Disabilities Act (ADA) you should offer him any other opening with your organization that he can perform with or without reasonable accommodation. You should also look at your disability policy to see how other employees were treated when out with injuries or illness, and then treat all employees in the same consistent manner.`


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