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Employer Handbook Posts for 04/21/2021
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The Employer Handbook by Eric B. Meyer

Here’s why it’s important for employees returning from FMLA leave to certify that they are fit for duty

Family and Medical Leave
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I’m filing today’s post under “FMLA: Back to Basics.”

Let’s say that you have an employee who is out on leave under the Family and Medical Leave Act due to a serious health condition. You want a doctor to certify that s/he is ready to return to work when leave ends.

So, how does that work?

Here’s what the Department of Labor says:

As a condition of restoring an employee whose FMLA leave was due to the employee’s own serious health condition that made the employee unable to perform the employee’s job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate in the fitness-for-duty certification process as in the initial certification process and is responsible for any associated costs.

You’re not exploring the employee’s entire medical history. Rather, the scope is narrow. Here’s more from the DOL:

An employer may seek fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave. The certification from the employee’s health care provider must certify that the employee is able to resume work. The employer must provide notice of the requirement to provide a fitness-for-duty certification with the designation notice.

Let’s see how this plays out in real life. For example, there’s this recent Third Circuit decision. The facts are fairly straightforward. The plaintiff is diagnosed with cancer and takes 12 weeks of FMLA leave. When her leave ended, she did not provide the defendant with the required clearance from her doctor, permitting her to return to work. Nonetheless, the defendant extended the plaintiff a personal leave of absence for another month, presumably a disability accommodation.

After the plaintiff’s personal leave ended, the defendant insisted on a fitness-for-duty certification. However, the plaintiff never provided the form and told the office manager that she still couldn’t work. So, the defendant ended her employment.

And guess what? The defendant won the subsequent FMLA retaliation lawsuit.

Why? You know why? But, let’s get some confirmation from the Third Circuit:

[The defendant] provided [the plaintiff] with the required amount of FMLA leave and even extended her personal leave. However, [the plaintiff] failed to provide [the defendant] with proof that she was able to return to work, which was required from the outset of her health issues. Therefore, a reasonable factfinder could not conclude that [the plaintiff’s] termination was a retaliatory action by [the defendant].

Folks, don’t be bashful about insisting on fitness-for-duty certifications. Heck, you can go one step further. Ain’t that right, DOL?

If the employer has provided a list of the essential functions of the employee’s job by no later than with the designation notice, an employer also may require that the certification address those essential functions. (See Employer Notice Requirements and Recordkeeping for more information.)

You’ve got your FMLA fix for the day, But, there’s more to nerd out on Friday, April 23, from 12-1 PM ET. By popular demand, The Employer Handbook Zoom Office Hour serves up Beverages and Benefits. My partners Mark MathisBob Ellerbrock, and Amy Epstein Gluck will take a deep dive into the new U.S. Department of Labor guidance and model notices to support the new COBRA premium subsidy under the American Rescue Plan Act of 2021You can register for that hereIf you have hypothetical questions for a friend, please complete this form. We’ll do our best to answer them without providing any legal advice whatsoever.

Next week, Friday, April 30, from 12-1 PM ET, my rockstar partner, Susan Warner, will join us to discuss Title III, the Winn-Dixie victory, and proactive steps that your business can take to bulletproof itself against these types of ADA claimsClick here to register.


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