When an employee takes a Family and Medical Leave Act (FMLA) leave of absence for a serious health condition, an employer often is confronted with a difficult decision-making process when the employee decides to return to work. The process is especially difficult when the reason for the leave is a health condition that may impair the employee’s ability to perform the job on his or her return. For this reason, it is helpful to review the Department of Labor’s fitness-for-duty regulations in the context of a question and answer format.
Question 1: Can the employer require the employee to supply a fitness-for-duty certification upon his or her request to return to work?
Answer: Yes, provided that the employer has laid the proper groundwork for such a requirement. First, the employer must have a uniformly-applied policy or practice that requires all employees who are similarly situated (that is, all employees with the same or similar jobs and the same or similar health conditions) to obtain a certification from the employee’s health care provider that the employee is able to return to work. Second, the employer can only seek a fitness-for-duty certification with respect to the particular health condition that caused the need for the FMLA leave in the first place. Third, if the employer wants to require an “enhanced” certification that the employee has the ability upon return to work to perform the essential functions of the job – as opposed to a “basic” certification stating only that the employee is able to return to work -- the employer must have supplied the employee with a list of essential functions no later than the time at which the employer notifies the employee of his/her eligibility to take FMLA leave and, in addition, must have stated in the initial designation notice that the health care provider’s fitness-for-duty certification must address the employee’s ability to perform those essential functions upon return to work. If the employer has complied with these prerequisites, the employer may require that, as a condition precedent to the employee’s return to work, the employee’s health care provider must certify that the employee is able to perform the essential functions specified on the list previously supplied to the employee.
Question 2: Can the employer delay the return to work pending the receipt of the certification?
Answer: Yes. The regulations provide that an employer that has complied with applicable notice requirements may delay reinstatement pending the receipt of the required fitness-for-duty certification. Moreover, if the employee fails to produce a medical certification complying with the regulations, despite having been given opportunities to correct the deficiencies in the certification, the employer may deny reinstatement.
Question 3: Can the employer contact the employee’s doctor after receipt of the certification?
Answer: Yes. The regulations provide that if the certification is “complete and sufficient”, the employer may not request additional information from the health care provider. However, the employer can contact the doctor for purposes of “clarification and authentication”, provided that: (a) the clarification is sought only for the serious health condition for which the leave was taken, and (b) the employer does not delay the return to work pending the clarification. To make the contact, the employer may not use the employee’s direct supervisor, but may use a health care provider, human resources professional, leave administrator, or management official.
Question 4: Can the employer insist that the certification come from the health care professional who actually treated the employee, as opposed to the employee’s regular physician?
Answer: Yes. In the recent case of Bento, et al. v. City of Milford (D. Conn., Sept. 30, 2016), the plaintiff, who took FMLA leave because of panic attacks and anxiety, sought to return to work based on a certification issued by her regular doctor, rather than her treating psychiatrist, even though the initial certification supporting the request for leave named the psychiatrist as the health care professional who would be treating her. The court held that the City did not violate the FMLA by refusing to accept the regular doctor’s certification and insisting on a certification from the psychiatrist.
Question 5: Can the employer require a second opinion as to the ability of the employee to return to work?
Answer: Yes, provided that the employer has “reason to doubt the validity” of the medical certification and provided that the second opinion is obtained at the employer’s expense. The employer has no right to insist on a second opinion from the employee or at the employee’s expense. A third opinion may be required if the opinion of the employee’s health care provider and that of the employer-designated health care provider differ. If a third opinion is sought, the third health care provider is to be selected by mutual agreement of the employer and the employee. The employer may be required to accept the opinion of the employee’s health care provider if it does not cooperate in the process of selecting the third health care provider, and the employee may be required to accept the second opinion if he or she does not cooperate in the third health care provider selection process.