Can employer deny my return to work after receiving doctors clearance?

I had surgery on my shoulder due to work related injury but was not able to claim
workman’s comp per my employer. I now have clearance from my doctor to return to
work with some restriction, none of which would pertain to my previous positions,
but my employer states they have no work for me. I did file for short-term
disability/FMLA and was granted it when I had my surgery, Can my employer deny my
return?

Asked on May 17, 2016 under Employment Labor Law, Wisconsin

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If you are returning directly from the FMLA leave, then they would have to let you return to work (not necessarily to the identical position, but at least to a comparable one), unless they can show some reduction in force or restructuring due to loss of business, work, or customers, which reduction is broader than you and which had nothing to do with you personally. (I.e. if they were doing lay offs, FMLA leave does not protect you from a lay off which would have affected you otherwise.)
But if you took additional time off after FMLA, either unpaid leave without a guaranty that you'd have work when you return, or used PTO, then they were not obligated to hold a position for you after that additional time away.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.