Enhanced FMLA Fitness-for-Duty Certification Provides Comfort to Employers
An employee’s return to work following an extended FMLA leave for a serious health condition of the employee often creates concerns on the part of the employer. In these situations, employers frequently question whether the employee is really able to perform the essential functions of the job and whether returning the employee to work may expose him/her to risk of further injury (and potentially expose the employer to legal risk). However, these concerns can often be relaxed through use of the “enhanced” fitness-for-duty certification procedures set forth in Section 312 of the Department of Labor’s FMLA Regulations, 29 C.F.R. § 825.312.
Pursuant to Section 312 of the Regulations, an employer can maintain a consistently-applied policy or practice that requires an employee to provide a fitness for duty certification following FMLA leave for the employee’s own serious health condition. Under the basic fitness-for-duty certification requirement, the employee must only provide a simple written note from the health care provider indicating the date on which the employee can return to work. Employers who utilize this basic procedure are often left wondering whether there are any concerns with allowing such an employee to resume regular duties.
To alleviate some of the unknown that exists with the basic fitness-for-duty certification, employers can instead require that employees provide an enhanced fitness-for-duty certification before being reinstated following FMLA leave. The enhanced fitness-for-duty certification requires the employee’s health care provider to review the essential functions of the employee’s position and to state in writing that the employee is capable of performing all of those functions. In order to trigger this requirement, employers must give written notice to the employee of the requirement to provide the enhanced fitness-for-duty certification and must provide the employee with a job description or list of essential functions to be reviewed by the health care provider. These documents must be provided to the employee no later than the time of the Designation Notice (29 C.F.R. § 825.300(d)).
Importantly, if an employee fails to provide a properly requested fitness-for-duty certification, the employer can delay reinstatement until proper certification is provided. Recently, in Bento v. City of Milford, Case No. 3:13-CV-01385 (VAB) (D. Conn. Sep. 30, 2016), a U.S. District Court in Connecticut ruled that an employer did not violate the requirements of the FMLA when it delayed an employee’s reinstatement for six (6) days while waiting for proper certification. There, the employee submitted a statement from a physician indicating that she was medically stable and could return to work, but the statement did not address the employee’s ability to perform the essential functions of the job and was not completed by the treating health care provider. The Court ruled that the since the employer had properly requested an enhanced fitness-for-duty certification under Section 312 of the Regulations, the employer was within its rights to deny reinstatement until such certification was provided.
Although the process to obtain an enhanced fitness-for-duty certification requires employers to spend additional administrative resources on the front end of the FMLA leave, that additional effort and cost is typically far outweighed by receiving written confirmation from the treating health care provider that the employee truly is fit for duty.