LEAVE TIME - Ensuring an Employee is Ready to Return Can Be Fraught With Problems
By Jeffrey S. Silvyn
The Family and Medical
Leave Act ("FMLA") allows an employer to require medical certification
when an employee requests leave for a serious health condition and even
to obtain second and third medical opinions when the employer questions
the need for leave. 29 U.S.C. Section 2601 et seq.
Many employers, however,
have an equal or greater concern about an employee who wants to return
to work after exhausting leave time. What if, for example, the employer
believes that the employee cannot perform the job safely or poses a safety
risk to others because of the severity of the physical or mental ailment
that led to the leave. What can an employer do to ensure an employee is
ready to return to work after the leave?
The leave act provides
that, as a condition of an employee's returning to work, an employer may
require that an employee receive certification from a health-care provider
that the employee is able to resume work. 29 U.S.C. Section 2614(a)(4).
However, the employer's ability to obtain return-to-work certification
from an employee is subject to significant restrictions.
Advance Notice of
Certification
An employer may require
certification only if it has a uniformly applied practice or policy of
requiring return-to-work certification. The employer must give notice
of the certification requirement at the time the employee gives notice
of the need for leave or advises the employer of the medical circumstances
requiring the leave.
The notice also must
appear in the employer's handbook or policy manual, if it has one. 29
C.F.R. Section 825.310(e)(1995); Underhill v. Willamina Lumber Co., 1999
WL 421596 (D. Ore. May 20, 1999) (unreported) (employer that terminated
an employee for failing to appear for an independent medical examination
following FMLA leave violated the act because it had no policy requiring
medical certification of the employee's ability to return to work).
Certification Limits
For return-to-work
certification, the employer must rely on the opinion of the employee's
health-care provider. 29 U.S.C. Section 2614(a)(4). In Albert v. Runyon,
6 F.Supp.2d 57, 62 (D. Mass. 1998), the district court found the employer
violated the leave act when it refused to reinstate an employee following
leave unless she submitted to a fitness-for-duty examination. The court
noted that, in the comments to the regulations, the secretary of labor
expressly declined to allow employers to seek a second opinion.
An employer may require
certification only for the particular health condition that caused the
employee's need for leave. The certification provided by the employee
need be only a simple statement of the employee's ability to return to
work.
If an employer questions
the basis for a return-to-work certification, it may seek clarification
from the employee's health-care provider regarding the employee's fitness
to return to work, provided the employee consents. The clarification may
relate only to the serious health condition for which the employee took
leave. 29 C.F.R. 825.310(c) (1995).
In Albert, the plaintiff
submitted a letter from her treating psychologist certifying her fit to
return to work, provided that she would not be subjected to the gender-based
harassment and discrimination that caused the mental condition requiring
leave. The court found the employer's refusal to reinstate her without
a fitness-for-duty examination violated the leave act.
An employer may not
make its own determination of an employee's fitness for duty, but it must
rely on the evaluation by the employee's own health-care provider. The
court further noted that the employer should have resolved any uncertainties
about the adequacy of the plaintiff's certification through clarification
obtained from the plaintiff's health-care provider.
An employer may require
that the employee bear the cost of a return-to-work certification and
may delay the employee's return to work until provision of certification.
29 C.F.R. Section 825.310(d), (e) (1995). The employer may not, however,
delay the return to work while obtaining clarification of the certification.
29 C.F.R. Section 825.310(c) (1995).
Interplay Between
FMLA and ADA
Frequently, a leave
taken under the leave act for a serious health condition also implicates
the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section
12101 et seq. The ADA has a different standard for fitness-for-duty examinations.
Under the ADA, an employer may require an employee to undergo a fitness-for-duty
examination if it is job-related and consistent with business necessity.
42 U.S.C. Section 12112(d)(4).
The 4th U.S. Circuit
Court of Appeals examined the interplay between FMLA and ADA in Porter
v. United States Alumoweld Co., 123 F.3d 243 (4th Cir. 1997). The plaintiff
worked as a machine operator and suffered a series of back injuries. Following
the plaintiff's back surgery, his physician released him to work without
limitations.
The employer requested
a functional-capacity evaluation to determine whether the plaintiff was
physically able to perform his job. Because the plaintiff's physician
did not perform that type of test, the employer requested that the plaintiff
obtain one elsewhere.
When the plaintiff
did not undergo the examination, the employer fired him. He brought claims
against his employer under both the leave act and the ADA. The court rejected
the plaintiff's claim under the leave act based on its finding the employer
was entitled to require a fitness-for-duty evaluation under the ADA. The
Porter court noted that the leave act's regulations recognize that an
employee may be subject to a job-related return-to-work physical as the
ADA permits. 29 C.F.R. 825.310(b) (1995).
However, an employer
may not require a fitness-for-duty examination permitted under the ADA
in all instances in which an employee takes leave for a serious health
condition. The examination must relate to the person's ability to perform
the essential. functions of the job.
For example, an attorney
entitled to take leave because of a leg amputation would not be subject
to a return-to-work fitness evaluation permitted under the ADA because
use of both legs is not necessary to perform the essential job functions.
Similarly, a manual laborer who suffers a back injury might be subject
to examination by an orthopedist, but the employer could not require the
laborer to submit to an HIV test. 29 C.F.R. 825.310(b) (1995).
The court further
explored the interplay between the leave act and the ADA and the limits
of Porter in Routes v. Henderson, 58 F.Supp.2d 959 (S.D. Ind. 1999). In
this case, the plaintiff was released for work without restrictions after
leave for treatment for alcoholism.
Following his return,
the employer asked him to submit to a fitness-for-duty examination and
fired him based on the evaluator's determination. The court found the
sole reason for the evaluation was the employer's suspicion that the employee
was not fit because he had taken leave under the leave act.
A fitness-for-duty
evaluation conducted by the employer must have a basis independent of
the leave, such as pre-leave conduct or post-reinstatement conduct. Because
the employer had no basis for the request other than a concern based on
the leave, it violated the leave act.
These decisions demonstrate
that employers must tread carefully if they wish to require medical certification
for return to work following leave under the leave act for a serious health
condition.
First, employers must
provide written notice to require return-to-work certification. Second,
employers must obtain the employee's consent to consult with the health-care
provider to obtain clarification, if necessary, and should obtain that
as close to the time of the request for leave as possible.
Finally, employers
should consider carefully whether an employee's need for leave under the
leave act involves a serious health condition that might reasonably be
expected to impact the employee's ability to perform the essential job
functions.
If so, the employer
may require the employee to undergo a fitness-for-duty examination, as
long as it relates to the ability to perform the essential functions of
the job and is based on more than simply the fact that the employee took
leave under the leave act.
Copyright 2000 Daily Journal Corp. Reprinted with Permission.