Return to Work Issues under the Family Medical Leave Act

Issue:

An employee has provided a Return to Work Authorization Form from their physician following approved leave pursuant to the Family and Medical Leave Act (FMLA).  FMLA requires the employee to return to their original position.

Question:

Can the employer require the employee to take additional medical and/or work functionality tests before reinstating the employee to their original position? as a condition of restoring employees whose need for leave under the FMLA arose from their own serious health condition.

General Rule:

Employers may require an employee to obtain and present a Fitness-for-Duty Certification from the employee’s health care provider stating the employee is able to resume work.  The need for such certification is to be communicated to the employee at the time notice of eligibility for FMLA leave is given.

Additionally, the employer must have a uniformly-applied policy for all similarly-situated employees.  As a general rule, the certification needs only to be a simple statement that the employee is able to return to work.  If the employer has provided a detailed description of essential job functions, some federal appellate courts have allowed a thorough “functional capacity evaluation.”  The nature of the job, safety implications, and uniformity of policy for all similarly situated would be critical factors.  For example, a knee injury may trigger the standards for an emergency medical technician, but not for an office clerk.

The employer may contact the employee’s health care provider for purposes of authentication and for clarification after the employee has been given an opportunity to provide the requested information.  HIPAA rules for privacy protection do apply.

Checklist for Fitness-for-Duty Certifications:

  • Adopt a uniformly-applied policy or procedure requiring Fitness-for-Duty Certifications from all employees who take leave for a health condition, even if they do not take FMLA leave.
  • Notify employees of the Fitness-for-Duty Certification policy in the employee handbook and again when an employee is notified that the leave requested qualifies for FMLA protection.
  • Do not request Fitness-for-Duty Certifications from employees taking intermittent leave, unless there is a reasonable safety concern and then no more than once every 40 days.
  • Be aware that state laws and/or a collective bargaining agreement may present special requirements regarding Fitness-for-Duty Certifications.
  • Make certain that the Fitness-for-Duty Certification comes from the employee’s own health care provider.
  • Ensure that the Fitness-for-Duty Certification only relates to the particular health condition that caused the employee’s need for FMLA leave.
  • Do not delay the employee’s reinstatement pending contract with their health care provider for purposes of clarification of a Fitness-for-Duty Certification.
  • Do not request a second or third opinion.

An employee who does not provide a fitness-for-duty certification or who requests additional FMLA leave is no longer entitled to reinstatement under the FMLA.