By John Herrington
The requirements imposed by the Family and Medical Leave Act (FMLA) often present administrative difficulties for HR personnel. Indeed, the FMLA gives employees who request and take leave plenty of advantages and provides significant penalties for employers that fail to comply with their obligations under the Act.
In recent years, plenty of disgruntled former employees have successfully relied on seemingly minor errors and omissions in employers’ efforts to comply with the FMLA’s detailed and nuanced technical requirements as the basis for a lawsuit.
Thus, many employers rightfully feel a bit uneasy when medical certification provided by an employee in connection with a request to commence or return from FMLA leave raises more questions than it answers. Many employees (and treating physicians) seem to operate under the assumption that vague and cursory statements from a medical professional will satisfy employees’ obligation to provide their employer with a “sufficient” medical certification. Employers are often hesitant to request additional information out of fear that such a request might be viewed as “interference” or “retaliation” and form the basis of a lawsuit.
However, a Connecticut district court recently ruled that the FMLA permits employers to require an “enhanced” fitness-for-duty certification in certain situations and delay reinstatement until the employee provides the proper certification.
By rejecting an employee’s FMLA retaliation claim under a specific set of facts, the court recognized that the FMLA regulations provide employers with an effective option to ensure that an employee returning from leave is able to perform her specific responsibilities before being reinstated.
The enhanced fitness-for-duty certification procedures set forth in Section 312 of the U.S. Department of Labor’s (DOL) FMLA regulations, 29 C.F.R. § 825.312, can be valuable tools for an employer that is concerned about an employee’s return to work following FMLA leave.
In Bento v. City of Milford, “Sherry” was employed as a community outreach worker by the city of Milford. She did not get along well with her supervisor. As a result of the tumultuous relationship, Sherry suffered from anxiety attacks and took FMLA leave on several occasions.
Sherry initiated the FMLA paperwork in February 2014, and her employer requested that she complete a Certification of Health Care Provider form. Initially, she returned a certification signed by her primary care physician that stated she was “under care of [a] psychiatrist and therapist.”
In light of the psychiatric nature of the problems leading up to her FMLA leave, the city requested that she submit a new certification from her treating psychiatrist. The city further specified that she needed to provide documentation from her “treating psychiatrist” stating she was able to safely perform her job duties at the conclusion of her leave.
Sherry subsequently provided a certification signed by her treating psychiatrist, and the city approved her FMLA leave. Just over a week later, she sent the city a letter signed by her primary care physician indicating she was ready to return to work.
When Sherry reported to work, the city’s personnel director told her that she needed to provide a letter signed by her treating psychiatrist in order to return to work. The same day, Sherry provided a one-sentence letter from her psychiatrist stating she was “cleared medically to return to work.”
After receiving the letter, the personnel director informed Sherry that she needed to obtain additional details from her psychiatrist before she would be allowed to return to work. Six days later, Sherry provided another letter from her psychiatrist specifying his observations and stating that after reviewing her job description and observing her demeanor in person, he concluded she should be medically cleared to return to work. She returned to work the next day.
Sherry resigned from her position with the city approximately 2 weeks later. She sued, claiming the city violated her FMLA rights by requesting documentation from her treating psychiatrist on two occasions. The court disagreed, determining that because the city had properly requested an enhanced fitness-for-duty certification under Section 312, it was within its rights to deny reinstatement until the certification was provided.
Different FMLA Certification Requirements
The FMLA provides for two different types of fitness-for-duty certifications. A standard fitness-for-duty certification can be satisfied by a simple statement from the employee’s healthcare provider explaining whether she is able to return to work.
With an enhanced fitness-for-duty certification, however, the employee’s healthcare provider must review the essential functions of the employee’s job and offer an opinion on her ability to perform those tasks.
Requiring an Enhanced Fitness-For-Duty Certification
An enhanced fitness-for-duty certification does not apply automatically. An employer must take four steps early in the process to trigger the enhanced fitness-for-duty certification requirements:
- The employer must give the employee written notice advising her of the need to provide an enhanced fitness-for-duty certification prior to returning to work.
- The employer must include the essential functions of the employee’s position in the notice.
- The employer must provide the notice no later than when it provides the FMLA designation notice.
- The employer must have a uniformly applied policy or practice that requires all similarly situated employees (i.e., employees with the same occupation and medical condition) who take FMLA leave to complete a fitness-for-duty certification.
The benefits of receiving explicit confirmation that an employee returning from FMLA leave is actually capable of performing all her essential job functions are obvious. Employers that do not routinely take the steps necessary to trigger the enhanced fitness-for-duty certification requirements should seriously consider assessing and altering their existing policies to gain an additional protection in navigating the FMLA leave process.