An employee is returning to work from medical leave taken under the Family and Medical Leave Act (FMLA). How can the employer know whether the employee is sufficiently recovered to perform their job duties safely and well? The answer may seem obvious – the employer should get a fitness-for-duty certification! But the use of fitness-for-duty certifications following FMLA leave is subject to strict rules. Failure to abide by them leaves an employer open to liability for FMLA interference. 

Background

Under the FMLA, eligible employees are entitled to take up to twelve weeks of unpaid, job protected leave each year for a qualifying reason (for a summary of the FMLA’s leave provisions, see here). One of those reasons is the employee’s own serious health condition (on the meaning of serious health condition, see here). When employees take FMLA leave, the law does not require them to provide a certification from their healthcare providers that they are ready to resume work. All employees need do is show up for work on the next scheduled workday after the end of their FMLA leave.

But an employer may be concerned about an employee’s ability to perform their job duties adequately and without danger to themselves or others. The FMLA allows employers to seek assurances that an employee is, in fact, fit to return to work, provided the employer takes affirmative steps to do so with respect to each employee who takes FMLA leave. First, employers must adopt a policy requiring fitness-for-duty certifications upon the conclusion of FMLA leave. But that is not enough by itself. An employer must also indicate, on the FMLA Designation Notice, that a fitness-for-duty certification will be required. If the employer fails to check the box for a fitness-for-duty certification, it cannot later require that employee to provide one.

Step 1: Adopt a Fitness-for-Duty Certification Policy

Employers may require a FMLA a fitness-for-duty certification only if it has a uniformly applied policy for all similarly-situated employees. Therefore, an employer’s first step is to decide on the circumstances in which it wants a certification that an employee is able to resume work. Employers may choose to require all employees on FMLA leave for their own serious health condition to provide a fitness-for-duty certification (fitness-for-duty certifications may not be required following bonding leave after the birth of a child). Or they may designate certain departments or certain positions as ones for which a certification will be required. Employers may also require certifications from all employees who have been out for certain kinds of serious health conditions, such as for surgery. The organization’s management team and human resources personnel should consult with department heads and then formulate a policy meets the needs of the organization as a whole and of its individual departments.

Step 2: Require a Fitness-for-Duty Certification on the Designation Notice and Attach a List of Job Duties

An employer has one chance and only one chance to ask an employee to provide a fitness-for-duty certification on return from FMLA leave: on the designation notice provided once FMLA is approved. On the United States Department of Labor’s (DOL’s) FMLA Form WH-382, the Designation Notice, there is a box to check that tells the employee that a fitness-for-duty certification is being required. It is on the bottom of the second page of the Designation Notice. Here’s what Form WH-382 says in this section:

Return-to-work requirements. To be restored to work after taking FMLA leave, you ( will be /  will not be) required to provide a certification from your health care provider (fitness-for-duty certification) that you are able to resume work. This request for a fitness for-duty certification is only with regard to the particular serious health condition that caused your need for FMLA leave. If such certification is not timely received, your return to work may be delayed until the certification is provided.

A list of the essential functions of your position ( is /  is not) attached. If attached, the fitness-for-duty certification must address your ability to perform the essential job functions.

There’s a lot to unpack in those two paragraphs.

First, the fitness-for-duty certification may ask only for information related to the particular health condition for which the employee is taking FMLA leave. See here at (b). The certification does not have to provide any more information than that the employee is able to resume work. See the case Budhun v. Reading Hospital and Medical Center. DOL does not provide a model fitness-for-duty certification, so the burden falls on employers to draft their own form. The certification form should probably reference the reason for which the employee was taking FMLA leave in case the employee has a different provider complete the fitness-for-duty certification than the one who completed the original medical certification form before leave began.

As the second paragraph from the Designation Notice shows, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. To hold the employee to that requirement, the employer must provide the employee with a list of the essential functions along with the Designation Notice and must check the box in the Designation Notice that says the certification must address the employee’s ability to perform those essential functions. If the employer fails to tell the employee that the certification must address the employee’s ability to perform his or her essential job duties, or if the employer does not provide a list of essential job duties, the employee is only required to provide a simple statement of fitness to return to work from the treating physician.

Employees are responsible for the cost of the fitness-for-duty certification just as they are responsible for the cost of obtaining the initial medical certification. See here at (c).

Step 3: Follow-up, If Necessary

If the fitness-for-duty certification says that the employee is fit to return to work, the employer must allow the employee to come back to work. See the case Brumbalough v. Camelot Care Centers, Inc. If, however, the fitness-for-duty certification includes restrictions, then the employer’s duty to reinstate the employee is not triggered. See the Budhun case and the case James v. Hyatt Regency Chicago.

But what if the certification is unclear, or if an employer suspects that the certification is fake? Employers may always contact the employee’s health care provider to clarify and authenticate the fitness-for-duty certification (remember, the regulations define “authentication” as requesting verification from the health care provider that the information contained on the certification form was completed and/or authorized by the provider who signed the document; “clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response). Clarification and authentication of a fitness-for-duty certification are governed by the same rules as clarifying and authenticating a medical certification. While seeking clarification or authentication, however, an employer must allow an employee to return to work while contact with the health care provider is being made.

What if an employer just doesn’t believe an employee is fit for duty despite what the certification says? In that case, the employer is out of luck. With fitness-for-duty certifications, no second or third opinions may be required, unlike medical certifications. See here at (b).

And what if an employee or their healthcare provider is uncooperative and does not return the certification in a timely manner? Employees have the same obligations to cooperate in the fitness-for-duty certification process as in the initial certification process. So when an employee ignores or delays responding to their employer’s request for a fitness-for-duty certification, the employer may delay the employee’s return to work until the employee submits the certification (or requests additional FMLA leave, if that is what is needed). See here at (a) and (e). An employee who does not provide a fitness-for-duty certification is no longer protected by the FMLA.

Fitness-for-Duty Certifications and Intermittent or Reduced Schedule FMLA Leave

Intermittent and reduced schedule FMLA leave present a dilemma when it comes to fitness-for-duty certifications. On one hand, if an employee is taking frequent but short chunks of leave, it would be an unreasonable burden to require a certification after each instance of leave. On the other hand, employers will sometimes need confirmation that an employee is still able to perform their job duties after multiple absences. The FMLA regulations attempt to strike a balance between these competing interests. While 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, it may request a fitness-for-duty certification for intermittent or reduced leave absences once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties.

As with FMLA taken in a continuous block of time, employers must inform employees in the Designation Notice that they will be required to submit a fitness-for-duty certification. In addition to the Designation Notice, employers should give employees written notice that for each subsequent instance of intermittent or reduced schedule leave, the employee will be required to submit a fitness-for-duty certification unless one has already been submitted within the past 30 days. An employer may not terminate the employment of the employee while awaiting such a certification of fitness to return to duty for an intermittent or reduced schedule leave absence. See here at (f).

Fitness-for-Duty Certification After an Employee Returns to Work

Whether or not an employer has required a fitness-for-duty certification, it sometimes happens that after an employee returns to work the employer has reason to question whether the same condition for which the employee took FMLA leave is limiting the employee’s ability to perform their job functions. At this point, an employee who has not used all of their twelve-week FMLA entitlement may be returned to FMLA leave. But itt is different if the employee has used up all of their FMLA leave. This employee is no longer protected by the FMLA. Now, the Americans with Disabilities Act (ADA) applies. The ADA allows an employer to ask an employee to undergo a fitness-for-duty exam related to the employee’s ability to perform essential job duties. In this case, the exam will be at the employer’s expense and may be done by a medical provider of the employer’s choosing.

Remember: If you don’t ask for a fitness-for-duty certification on the Designation Notice, you are out of luck!