Question: What options does an employer have when an employee who had a work-related accident keeping him off work for four months and exhausting the Family and Medical Leave Act (FMLA) leave refuses to participate in a return-to-work program assignment that provides light duty work as required by the employee’s physician?
Answer: An employer may want to first explore with the employee his reason(s) for refusing the light duty work assignment that meets the physician’s light duty requirements as described. If it is due to the commute (greater distance) or any other reason that is out of the employee’s control, the employer should explore how to work with the employee, perhaps by permitting a leave extension to support the ongoing absence. If the refusal to accept the light duty position is within the employee’s control (he doesn’t like the job description, for example), the employer should review the situation with a labor attorney to ensure that the company is following the requirements for return to work accommodation as required under the Americans with Disabilities Act and the state workers’ compensation regulations. Options could include (1) allowing the employee additional time off, possibly without pay, to completely heal and return to work later and without the light duty restrictions, or (2) considering that failure to accept available light duty employment will be interpreted as a voluntary resignation.