An employee, Jessie Crutch, had a long-time reasonable accommodation of being allowed to rest his hip for a few minutes every few hours while working as a warehouse custodian.  As the injury got worse and management less tolerant of his need to sit for a few times a day, he started to take time off using his FMLA rights to rest his hip.   When he returned after two days of FMLA leave, he submitted the same medical documentation he always did, namely that he could perform all his duties but needed intermittent periods to sit. However, his supervisor informed him that he would not be permitted to work again until he either submitted new medical documentation certifying that he no longer needed to rest his hip during the work day or he submitted a formal request for light duty.  So, Crutch went home.  While a sad situation for Crutch, are there any violations of law and regulation here?

If you guessed there is a violation you are wrong.  If you guessed two, three, or four you are also wrong, but warmer.  There are five—or at least that is what MSPB found when it decided Jessie Crutch v. Dept. of the Army, 38 MSPB 2013(May 22, 2013).

First, the agency failed to return the employee to his former position at the end of his FMLA leave.  That violates 29 CFR 825.214.

Second, while the agency can demand that an employee returning from FMLA provide a medical certification of his/her readiness to work, it must first provide the employee with a list of the essential duties of the position for his medical professional to review and request that the medical certification address the employee’s readiness to perform each of them.  The agency did not do that and even if it had on the day Mr. Crutch returned it would have had to reinstate him for a reasonable period while the employee obtained a proper “return to duty certification.” (29 CFR 825.312(b))

Third, by barring the employee from working when he otherwise had a right to under FMLA, the agency had constructively suspended him without due process.  That violates the employee’s adverse action rights.

Fourth, the agency violated the Rehabilitation Act by demanding that an employee, who was already approved for a reasonable accommodation and had shown over time he could do the essential duties of the job with that accommodation, apply for light duty.  Despite any agency regulations offering or requiring light duty, the employee had the right to continue to perform the job he had been performing for years. The Board stated that the agency had effectively withdrawn Mr. Crutch’s long-standing reasonable accommodation while he was constructively suspended. (42 USC 12112(a), (b)(5)(A))

Fifth, by failing to continue to offer a reasonable accommodation under the Rehabilitation Act, as it had done for nearly a decade, the agency constructively suspended the employee under an alternate theory of a constructive suspension. The Board held that “if the employee who initiated his own absence requests to return to work within certain medical restrictions, and if the agency is . . .  bound by the Rehabilitation Act of 1973 to accommodate a medical condition and to allow the employee to return, the agency’s failure to . . . reasonably accommodate the employee becomes a constructive suspension.” Consequently, it violated the adverse action due process requirements by simply barring him from returning to work

As a remedy, the Board ordered the agency to give the employee back pay for the time he was barred from working, interest on the back pay, restore any annual or sick he had used during his enforced absence, return him to his long-time position, and for a hearing officer to calculate whether the employee is entitled to up to $300,000 compensatory damages.  Attorney fees will also be paid.

This case is a great example of the connection among three separate statutes protecting an employee, namely, the FML Act, the Rehabilitation Act, and the adverse action protections.  When an employee complains of an FMLA problem, the union rep should also consider alleging a Rehab Act violation—and vice versa.  Finally, it points out that even the agency offers light duty, the employee still has his/her rights under those statutes.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
This entry was posted in Discipline/Adverse Action, EEO/Disabilities, FMLA, Test Yourself and tagged , . Bookmark the permalink.

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