Do You Use a Fitness-For-Duty Certification After FMLA Leave?

Employers have come up with dozens of methods for ensuring the proper administration of Family Medical Leave Act (FMLA) leave and minimizing its abuse. It’s important to ensure that employees who return to work are truly ready—and that the leave is administered in a way that is fair and legal for all employees. One such method to ensure proper administration is to require fitness-for-duty certifications for employees returning from FMLA leave. This assists in the fair implementation of FMLA leave and also acts as a means to ensure employees can return to work and complete their duties without compromising quality or safety.

What Is a Fitness-For-Duty Certification?

A fitness-for-duty certification is a confirmation from a healthcare provider that certifies that the employee is able to return to work after a leave of absence. Typically, this assessment is based on the list of essential functions for the role (more on that in a minute).

Requiring a fitness-for-duty certification is allowed under the FMLA regulations, as long as:

1. The fitness-for-duty certification focuses only on the medical condition that necessitated the employee to take FMLA leave, and
2. The employer advised the employee about the requirement of a fitness-for-duty certification in the FMLA designation notice.

Just like the original medical certification from a healthcare provider that employees must submit outlining the need for FMLA leave, this fitness-for-duty certification must be obtained by the employee at the employee’s expense.

In order to get the most benefit from these certifications, the employer should include a list of essential job functions for the healthcare professional to use for the assessment. Without such a list, the fitness-for-duty certification will rely on the employee simply advising the healthcare professional of his or her duties—which could limit the likelihood of a fully unbiased assessment. (The key here is to have an accurate list of essential job functions for all roles, so that it is ready to go should it be required.)


How Does a Fitness-For-Duty Certification Work in Practice?

When an employer uses a fitness-for-duty certification as part of the FMLA process, it is the responsibility of the employee to complete the certification before being able to return to work after FMLA leave. In practice, that means that as long as the employer has followed the regulations, the employer has the right to deny the employee the ability to return to work until the fitness-for-duty certification has been completed and submitted. If an employee refuses to do so and does not request additional FMLA leave, he or she may lose the right to job reinstatement. (However, note that an employer cannot delay reinstatement while awaiting clarification or authentication from the healthcare provider.)

There are several other considerations as well:

• Much like the original medical certification, the employer may only contact the healthcare provider for clarification or authentication of the information—NOT to obtain additional information.
• Unlike the original medical certification, no second or third opinions can be requested for fitness-for-duty certifications.
• Fitness-for-duty certifications are allowed for intermittent FMLA leave only if there are reasonable safety concerns related to the employee’s return from each absence. Even in such cases, this certification can be required only once every 30 days.
• Employers should be very careful to pay attention to requirements under the Americans with Disabilities Act (ADA) in conjunction with FMLA requirements when an employee wants to return to work. For example, if an employee’s serious health condition could also be considered a disability under the ADA, it may necessitate the employer going through an interactive process to determine what reasonable accommodations may be made to return the employee to work. It may also necessitate providing the employee additional leave in some cases, even after the FMLA leave is exhausted. This affects fitness-for-duty certification, as it may mean that an employee should be allowed to return to work even if a medical professional cannot yet certify that essential job functions can be completed without assistance. Employers need to be aware of overlapping legal requirements in this regard.

Do you use fitness-for-duty certifications for employees returning from FMLA leave? What has been your experience with them?

 

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About Bridget Miller:

Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.