Medical Leave and

[Guest R Bartels]

Employee currently out on medical leave for non work related herniated disc and lateral recess stenosis. Employee is a CNA. Frequently lifts patients (that can weigh 100 lbs or more, carries, lots of reaching, walking, standing, personal care. She's been out several times due to this condition. She's exhausted FMLA and has started medical leave with no pay. Her spine doctor says its ok for her to return to work, no restrictions..

It's a revolving door. She works a couple of weeks then hurts her back, out a couple of weeks while she gets treatment. Gets better, comes back, works a couple weeks and then she's out again. Because she's in patient care, it's important to have a same care giver to provide continuity of care. Every time she goes out, the schedule has to be revised with the other CNAs and patients and families get upset.

The doctor was provided with a copy of her job description, but it seems he's just ignoring it. He doesn't want to tell her the bad news, which is she can no longer do this type of work and expect for her medical condition to get better.

Since I have a doctor telling me it's ok for her to return to work, do I have to let her? It's not FMLA, she's exhausted that, she on our 90 medical leave.

Which just started....

She wants to come back, but said to me that she knows that she keeps doing the same thing over and over and that expecting a different result is the definition of crazy.

Employees on medical leave are not guaranteed a position upon the end of the medical leave.

Any advice?

[GMK]

Some options -

Get a second opinion (at the company's expense) of her fitness to return to work.

Get the doctors to recommend exercises to strengthen the patient's back and to prescribe a back brace or support.

Impose a weight lifting limit on her at work.

Hope that her doctor doesn't lead her down a path to total disability.

[masteff]

Having held the designations of CEBS and SPHR in the past, I'll just weigh in that this is an employment law issue rather than a benefits law issue. You indicate this was not a workers comp issue. You might double check ADA (but I would start with the presumption that it entirely fails the definition of a protected disability). If nothing else, this is a BFOQ with no room for reasonable accomodation.

It would be worth paying an employment lawyer for an hour for advice before doing what I would do which is require the employee get a review from a second doctor, perhaps an occupational injury specialist. If you do request she get a second opinion, review ADA for rules on keeping medical records separate from the employee's general personnel file.