Issues with Long-Term Disabled Employees Returning To Work Following a Stroke

You have stated, "We employ 52 employees in California. A long-term elderly employee just returned to work after a minor stroke.  His doctor provided a release to return to work, but now his supervisors and colleagues are reporting issues with his work.  We are concerned for his health and want to handle this right.  What do we do?"

Based on your representation that you employ 52 employees, your Company is covered by the Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA), Americans with Disabilities Act (ADA), Fair Employment and Housing Act (FEHA), and, if applicable to the prior leave, California’s Workers’ Compensation Act (WCA) and Healthy Workplaces, Healthy Families Act of 2014. 

A minor stroke would qualify as a “serious health condition” for purposes of family and medical leaves (FMLA/CFRA) and as a “disability” under FEHA. Depending on how much time he was out of work and which of these leaves he was on at the time of his return to work would dictate the type of release/second opinion etc. that you could have requested upon his return to work. 

Nonetheless, as of this time, supervisors and colleagues are reporting issues with his work that although not specified strongly suggests that you question whether he is currently able to perform the essential functions of his position, with or without reasonable accommodations. While there is not enough information here, for example, as to his position, the essential physical and mental requirements to perform his position, if any reasonable accommodations have been provided or can be provided.  Typically, the next step will include addressing the issues with the employee and exploring possibly reasonable accommodations, along with providing his treating physician with a new medical certification to complete, along with his job description, and description of the behavior reported.  In some cases, the Company can request that the employee undergo a fitness for duty examination at the Company’s expense.

Lisa Sherman
California Labor & Employment Attorney