Q: This week, one of our employees professed her love to one of her co-workers (who is married) and announced to everyone that they had been dating.  The problem is — it’s not true.  When questioned about it, she continued to insist that she and her colleague had been dating despite clear evidence to the contrary.  The employee’s comments left her co-worker a bit shaken.  As a result of our observations, we were concerned whether the employee was mentally fit for duty, and we placed her on a leave of absence.  However, she insists that she can work and wants to return.  In the meantime, she has called the co-worker at work and references their “relationship.” Can we force the employee to remain on leave until she is fit to return to work?

A: Dealing with sensitive employee mental health issues can be among the most difficult for HR professionals and in-house counsel.  Under these circumstances, something clearly is awry, and the employer has the right to keep an employee off work until it can be certain the employee has addressed her apparent mental health issues and is fit to return to work.

Not surprisingly, the courts back up employers on this issue.  Take, for example, Carris, who worked for Hyatt Regency Chicago as a banquet steward, a position which required him to lift and move objects around the banquet area. He had vision issues, which Hyatt accommodated by increasing the print size of his work assignments and schedules. In March 2007, he injured his eye and was forced to miss work. In April, James gave Hyatt a doctor’s note stating that he could return to “light duty” a short time later, but provided nothing more. As a result, Hyatt kept him on FMLA leave, presumably because there were no “light duty” positions available. He later submitted a release stating he was allowed to return to work. However, Hyatt kept him on leave because he also provided separate medical paperwork indicating some level of restrictions.

Carris later filed an FMLA lawsuit, claiming he was forced to remain on FMLA leave too long. In short, he argued that Hyatt inappropriately kept him on FMLA leave.  The district court dismissed his claims and a federal appellate court agreed.  James v. Hyatt (pdf) The appellate court succinctly summed up the issue:

Employers are under no obligation to restore an employee to his . . . position if [he] is unable to perform the essential functions of the job.

So, there you go: when you have a reasonable belief that your employee cannot perform the essential functions of the job (including when you are faced with mental health issues of the kind raised in the question above), you can keep the employee off work until you have that confirmation.

Technical point alert!  Technical point alert! 

On this blog, I attempt to stay away from the legal mumbo jumbo for fear I will only further embarrass the legal profession. But for those tried and true FMLA legal wonks out there, here’s another way to bounce an employee’s FMLA lawsuit in situations like those highlighted above.  As I explain below, even if an employer wrongfully forces an employee to take FMLA leave (and we know that virtually never happens!), the employee cannot successfully raise an FMLA interference claim unless the employee seeks FMLA leave at a later date and the leave is not available because the employee was wrongfully forced to use FMLA leave in the past.

Let me explain with a real life example:  Tracy was a welder for Trinity Marine Products.  Trinity informed her that she was being placed on FMLA leave because it believed she suffered from a medical condition that rendered her unable to work.  (In an evil twist, the court never specified what the condition actually was.)   Tracy promptly obtained her doctor’s clearance to work, but her employer didn’t accept it.  It didn’t accept clearance from a second doctor either. Or a third doc. After Tracy presented the third clearance, her employer told her she had exhausted her FMLA leave, and her employment was terminated.

Really.  I’m not making this up.

What’s more is that the court agreed with the employer and dismissed her FMLA interference claim. Why? Tracy admitted that she did not have a serious health condition. After all, she wanted to return to work! Right? So, she could not successfully raise an FMLA interference claim until she later sought FMLA leave for an actual serious health condition and then was denied leave. The Court summed it up this way:

if forced leave can amount to interference with a right provided under the FMLA, it can do so only if the employer’s action prevents the employee from using benefits to which she is entitled under the Act.

In Tracy’s case, because Trinity did not (yet) interfere with her right to FMLA leave, the court properly dismissed the claim.  Walker v. Trinity Marine Products (pdf)

If this stuff ain’t fun, I don’t know what is!  Right?