Leave from work may be taken and protected by the Family & Medical leave Act by eligible employees who work for covered companies their own “serious health condition” or that of an immediate family member, in addition to other reasons such as adoption or care for a newborn. When the employee is the one with the serious health condition, the employer can require that an FMLA fitness-for-duty certification be presented before s/he can return to work. If your employer has required this of you there are a few very important points you need to understand.
What is FMLA Fitness-for-Duty Certification?
In the case of an employee’s serious health condition, it is incumbent upon the employer to advise the employee that the leave is Family & Medical Leave Act-qualifying and to give notice of this designation. When this designation is delivered, the employer must also advise if a fitness-for-duty certification is required before the employee can return to work.
The employee has the same obligations to participate and cooperate in the fitness-for-duty certification process as in the initial certification process. The costs for this certification fall on the employee.
If the employer has designated essential job functions for the employee’s position, the employer can require that the certification addresses those essential job functions. The employer may contact the employee’s healthcare provider for points of clarification on the certification but the communications with the health care provider must be limited to an authentication of the opinion or clarification and should not delve into the details of the qualifying condition and treatment without the consent of the employee. During this process/communication with the healthcare provider, the employer cannot keep the employee from returning to work.
Healthcare providers can be, but are not limited to:
- Anyone authorized to practice medicine or surgery in the state the employee works
- Clinical psychologist
- Nurse practitioner
- Physician’s assistant
When an FMLA Fitness-for-Duty Certification Is Violating the Law
The employer must advise the employee (in writing) that a fitness-for-duty certification is required to return to work when the employer originally designates the time as leave qualifying for protection under the Family & Medical Leave Act. An employer cannot decide it’s needed after the employee returns to work.
Fitness-for-duty certifications must be part of your employer’s uniformly-applied policy. They are not at (legal) liberty to request one from one employee and not from another similarly-situated employee. An employee cannot be fired denied rights to be restored to an equivalent position while the employer waits for the certification or communication from a healthcare provider.
The fitness-for-duty certifications are only applicable to the serious health condition that caused the employee to take FMLA leave.
Unlike the initial certification process for FMLA leave, under the FMLA, the employer cannot require second or third opinions. The employer may delay return to work only if the employee refuses to turn in a fitness-for-duty-certification, or if the healthcare provider deems the employee is not fit for return. A second or even third opinion may be an option of the underlying medical condition also qualifies as a disability and the employer requests another opinion in compliance with requirements under the Americans with Disabilities Act.
A fitness-for-duty certification is not required when an employee returns to an intermittent or reduced-leave schedule. However, if “reasonable safety” is a concern, the employer can request an evaluation up to once every 30 days. Reasonable safety includes the employee’s safety and that of those around him/her.
If your employer is questioning your FMLA fitness-for-duty certification, or if you were required to provide one but an employee in a similar situation was not, consult with a Tampa employment attorney at Wenzel Fenton Cabassa, P.A. Your initial consultation is free. Call today or check out the resources at www.wenzelfenton.com.