FMLA allows fitness-for-duty certifications for employees returning to work

Employers can delay workers return date for not providing information

Posted November 14, 2016

When an employee is on leave under the Family and Medical Leave Act (FMLA) for his or her own serious health condition, you may require that the employee provide a fitness-for-duty (FFD) certification before returning to work. If you request that the employee’s health care provider address the employee’s ability to perform the essential functions of the job and provide a list of those essential functions, the employee will need to provide that information before returning to work, as well.

Such requests are generally to be made no later than when the designation notice is provided. In fact, the designation notice includes an area where you may indicate that you will require a fitness-for-duty certification, and whether you will require it to address the job’s essential functions.

If an employee does not provide the requested information, you may delay the employee’s return to work.

An employee learned of the extent of this provision through the courts.

Court case — employee sues employer

Phillipe requested FMLA leave for his anxiety, and was instructed to provide a certification. While he did provide one from his primary care physician, it indicated that he was being treated by a psychiatrist. In light of the psychiatric nature of the problems that led to Phillipe’s FMLA leave request, he was asked that a new certification be completed by his treating psychiatrist.

Phillipe was also told that he would need to provide documentation from his treating physician that he would safely be able to perform his job duties at the conclusion of leave. To help make such a determination, Phillipe was given a list of his job’s essential function to provide to his physician. The leave took place as indicated in the certification.

The leave was approved the same day Phillipe provided a certification from his treating psychiatrist.

When Phillipe returned to work, he provided a note from his primary care physician. He was told that he needed to have information from his treating psychiatrist, as before. He did provide a single-sentence note from his psychiatrist, indicating that he was cleared to return to work. He was reminded that he needed to provide information that he was able to perform the essential functions of the job. Six days later, he provided a certification that did address the essential functions. He was returned to work the next day.

Phillipe, however, sued, arguing that the employer went too far when it delayed his return to work and asked for the more detailed fitness-for-duty certification. The court, however, indicated that since he was not denied any of the rights to which he was entitled, and that the employer had provided proper notification of the need for the detailed certification, the delay in restoration was not unlawful.

The employer complied with all of the applicable FMLA regulations regarding the additional information requested for Phillipe’s return to work. Phillipe was clearly notified that he was expected to provide such detailed information from his treating psychiatrist before he would be allowed to return to work.

Bento v. City of Milford, et al., District Court of Connecticut, No. 3:13-CV-01385, September 30, 2016.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.


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About the author:

Darlene Clabault

Darlene M. Clabault is a certified Professional in Human Resources and a senior editor at J. J. Keller & Associates, a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Clabault specializes in topics such as the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Affordable Care Act (ACA). She is the author of J. J. Keller’s FMLA Essentials and ADA Essentials guidance manuals, and a content resource for training, program administration services, and online management tools. For more information, visit www.jjkeller.com/hr.