by Steve Jones
Q: Can an employer send an employee who is returning from Family and Medical Leave Act (FMLA) leave to a company-appointed physician for a second opinion to verify that he is able to perform the essential functions of his job?
A: No. The FMLA doesn’t permit an employer to request a second or third opinion on whether an employee is able to perform the essential functions of his job. The certification from the employee’s health care provider satisfies the requirements for the fitness-for-duty certification requested by the employer.
FMLA leave
Under the FMLA, an employee is entitled to reinstatement to his former job or an equivalent position upon returning from leave. However, the right to job restoration is qualified, not absolute.The FMLA doesn’t require you to reinstate an employee who is unable to perform all the essential functions of his preleave position at the time he seeks to return to work.
As a condition of reinstating an employee whose FMLA leave was occasioned by a serious health condition that made him unable to perform his job, you must have a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to obtain and present certification from their health care provider that they are able to resume work. An employee has the same obligations to participate and cooperate in the fitness-for-duty certification process (including providing a complete and sufficient certification to the employer or authorizing his health care provider to give the information directly to the company) as his employer had in the initial certification process.
Limitation on certification
You may seek a 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 state that he is able to resume work. You may require that the certification specifically address the employee’s ability to perform the essential functions of his job. To require such a certification, you must provide the employee with a list of the essential functions of his job and indicate in the designation notice that the certification must address his ability to perform those essential functions. If you satisfy these requirements, the employee’s health care provider must certify that he can perform the identified essential functions of his job.
Clarification
You may contact the employee’s health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Clarification may be requested only for the serious health condition for which FMLA leave was taken. You may not delay the employee’s return to work while clarification with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required.
Intermittent leave conditions
Additionally, the FMLA bars employers from seeking fitness-for-duty certification from employees returning to work after taking intermittent leave. Employers haven’t responded favorably to this policy because it raises safety concerns about whether employees are actually ready to return to work. In a recent survey by the U.S. Department of Labor (DOL), several employers stated that particular safety concerns inherent in their workplaces necessitated that they obtain clear information regarding an employee’s ability to safely return from leave. The employers suggested that the DOL should delete or revise the regulations so that companies would have the right to seek fitness-for-duty certifications from employees returning to work from intermittent leave.
Bottom line
The FMLA requires employees to submit fitness-for-duty certifications from their own health care providers upon request when they return from FMLA leave. You are not permitted to send employees to a company-approved health care provider for a second or third opinion.