Meet Diligent Dan (hereinafter “Dan”). Dan had back surgery and has been out on FMLA leave for six weeks, He is due to return to work in another two weeks. Dan works as a Manager at Splendiforous Supermarket (Splendiferous”). Betty the Boss having recently decided to institute a new requirement, calls Dan and informs him that he can only return to work if he provides certification from his physician stating that he can return to work “with no restrictions”. While Dan’s job does not require him to be on his feet all the time, his doctor says he may need some periodic breaks where he needs to sit more often, and initially, will need to wear a back brace. Betty tells Dan not to come back until he is able to work without any restrictions or accommodations. Dan’s recovery takes a bit longer than expected, and after Week 12, Betty advises Dan that she will be replacing him. Dan sues Splendifourous for FMLA interference and retaliation. You have probably guessed that Splendiforous will lose. Find out why after the jump…
What did Splendiferous do wrong? Frankly, we would save time by asking what didn’t Splendiferous do wrong, but then we wouldn’t really learn anything, would we? Was it because Splendiferous required a certification before Dan could return to work? This, by the way, is known as a fitness-for-duty certification. Let’s talk a bit about that. Employers are allowed under the FMLA to require such certifications, if:
- An employee takes FMLA leave for their own serious medical condition; and
- the employer advises the employee of the need for such a certification in the notice designating his/her leave as FMLA leave; and
- the requirement is part of a policy applied uniformly to all similarly-situated employees; and
- the employer seeks the fitness-for-duty certification only in connection with the medical condition that triggered the FMLA leave.
Let’s pause here for a moment and look at Splendiferous where Splendiferous went wrong. For starters, Splendiferous, through Betty did not advise Dan of any need for a fitness-for-duty certification until he was already out on FMLA leave. You can see in #2 above, that Splendiferous needed to advise Dan in its notice designating his leave as FMLA leave that he would need to provide such a certification. Second, the fact that Betty decided to implement a new requirement suggests that it is not part of a policy uniformly applied to similarly-situated employees.
Let’s continue. What else must an employer do before it can require fitness-for-duty certifications before return from an FMLA leave? One thing it cannot do is require that an employee be able to return to work without any restrictions. This requirement may run afoul of the ADA. The EEOC takes the position that requirements connected to fitness-for-duty certifications must be job-related and consistent with business necessity. For example, Dan’s need to sit periodically may not prevent him in any way from performing the essential functions of his job. If he can still do all the essential functions of his job, then refusal to let him return to work probably amounts to disability discrimination. If periodic sitting does impact his ability to perform his job, it may still be a reasonable accommodation that would be required under the ADA. Either way, Splendiferous could be looking at both an ADA and FMLA violation claim.
What if Betty just wants to be sure that Dan can perform the essential functions of his job before returning to work? Maybe Betty is worried about Dan’s safety. Aside from providing notice of a need for the fitness-for-duty certification in the FMLA designation letter, what would Splendiferous need to do? In that same FMLA designation notice, Splendiferous would need to advise Dan that his certification would have to state that he could perform the essential functions of his job, provide Dan a list of those functions, and reference that list in the Designation Notice. If an employer merely advises of the certification requirement but does not provide a list of essential job functions, then the employer must accept a physician’s certification that the employee can perform the essential job functions even if there is no reference to any specific functions. In other words, unless the employer defines the essential job functions, the employee, in effect gets to do so– and the employer is stuck with the employee’s definition. Unlike certifications as to an employee’s need for FMLA leave, employers may not ask for second or third opinions here.
What else should Splendiferous –and all other employers–know before requiring a fitness-for-duty certification prior to return from FMLA leave?
- The employee bears all costs related to obtaining and providing the certification;
- The employer may delay an employee’s return to work if the employee does not provide the certification and the employer’s requirements comply with FMLA requirements; If an employee never provides the certification, the employer can deny the employee job reinstatement.
An employer is not entitled to a certification of fitness to return to duty for each absence taken on an intermittent or reduced leave schedule. However, an employer is entitled to a certification of fitness to return to duty for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave. Employers can also set longer intervals.
- If state or local law, or terms of a collective bargaining agreement govern an employee’s return to work, then they, and not the FMLA will be controlling.
- Have a written policy, that you apply uniformly to all similarly situated employees.
- Do not require that an employee be 100% healed before s/he returns to work.
- Review your FMLA policies and job descriptions with HR, in-house counsel or competent outside employment counsel.
- Come back next week when we talk about disciplining an employee on FMLA (See what I did there?).
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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