Employers are permitted to require an employee returning from medical leave to submit a fitness-for-duty certification but only under certain circumstances, as a recent case illustrates.
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Among other things, the Family and Medical Leave Act (FMLA) requires that employees be informed of the requirement at the same time the leave is designated as FMLA-eligible. Moreover, the employer must have a uniformly applied policy requiring such certifications.
While these FMLA requirements are well-settled, they became a sticking point in a recent case when an employee became eligible for FMLA protection while he was already out on medical leave.
Facts of the Case
“Dwight” worked as a registered nurse for OhioHealth. He requested a few weeks of medical leave, but because he had not worked there for at least a year, he was not eligible for FMLA leave. Instead, the hospital granted his request under its own leave policy. After a few weeks, he returned to work.
When he needed another leave, the hospital again informed him that he was not eligible for FMLA leave, but that he could take time off under the employer’s internal policy. That leave was extended twice and while he was out, he crossed the FMLA’s 12-month eligibility threshold.
When he was ready to return to work, the employer invited him to apply for a different job because it had filled his position. OhioHealth also said that it would need a return-to-work release from his doctor. After 6 weeks, he provided the release.
After talking to Dwight, the hospital realized that he had become FMLA-eligible while on leave. To remedy the oversight, it said it would restore Dwight to his original position—as the FMLA requires. It also paid him for the 2 weeks that passed between his provision of the release and his reinstatement.
Dwight sued, alleging interference with his FMLA rights. He continued working but received various warnings for performance and safety issues. The employer suspended him pending an investigation of several incidents and ultimately fired him. Dwight then amended his suit to add a retaliation claim.
A federal district court dismissed his claims and he appealed.
Appeals Court Weighs In
On appeal, Dwight alleged that the hospital interfered with his FMLA benefits because it delayed his reinstatement for about 8 weeks. The employer, on the other hand, said it was waiting for his return-to-work clearance, which he didn’t provide for about 6 weeks.
But it’s not clear that the employer was even permitted to require such a release, the 6th U.S. Circuit Court of Appeals said. First, the lower court never evaluated whether OhioHealth had a uniformly applied policy requiring return-to-work releases. It never required a release after Dwight’s first medical leave, “which could be taken by a fact-finder to indicate the lack of a uniform policy,” the appeals court said.
Moreover, OhioHealth didn’t tell Dwight in an FMLA designation notice that his restoration would be contingent on the release, as the law requires. “As a result, we find that OhioHealth interfered with [Dwight]’s FMLA rights as a matter of law, because even if OhioHealth had a policy of requiring fitness-for-duty certification, and even if OhioHealth notified [Dwight] of this policy, it is undisputed that OhioHealth did not inform Dwight of the consequences of failing to provide a certification,” the appeals court concluded.
The court also found that the lower court erred in finding that Dwight wasn’t harmed by the interference. Because his reinstatement should not have been contingent on the return-to-work release, he was harmed when the employer failed to allow him to return to work for 8 weeks. The employer paid him back wages for the 2 weeks between the provision of his release and his return to work, but it did not pay him for 6 six weeks before he provided the release.
“These matters clearly are in dispute, and the district court thus erred in granting summary judgment to the defendants,” the appeals court said. “A jury should weigh the evidence and determine whether [Dwight] was harmed by the delay in job restoration and whether the check offered by OhioHealth fully compensated him for the harm.”
The court also revived Dwight’s retaliation claim. He provided enough evidence from which a reasonable jury could conclude that OhioHealth’s reasons for his termination were not the real motivation. Two coworkers testified that when he returned from the second leave, the employer scrutinized his performance more closely than that of other nurses and disciplined him unnecessarily. The timing of the increased scrutiny could support a finding of retaliation, too, the court said (Casagrande v. OhioHealth, No. 15-3292 (6th Cir., Dec. 20, 2016)).
Employer Takeaway
The FMLA permits employers to condition job restoration on fitness-for-duty certifications, if that information is communicated with notices of eligibility for FMLA leave. The U.S. Department of Labor’s Designation Notice (WH-382) has a place to note this requirement and instructions for including further information. In addition, the requirement must be a uniformly applied policy, as the “Dwight” court made clear.
In addition to the criteria addressed in that case, these types of requests also must be narrowly tailored to avoid violations of other laws, such as the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
In addition, if an employee is using FMLA leave intermittently, an employer generally cannot require a release after each absence, according to DOL’s Fact Sheet #28G: Certification of a Serious Health Condition under the Family and Medical Leave Act. However, if the employer reasonably believes that an employee’s return to work presents a significant risk of harm to the employee or to others, it may require a fitness-for-duty certification up to once every 30 days, the guidance says.
Finally, an employer is permitted to contact an employee’s healthcare provider to clarify or authenticate a fitness-for-duty certification, but it cannot delay the employee’s return to work while making that contact, the fact sheet says. Employers also may not require a second opinion.
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Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for