Employees taking FMLA leave should be aware that, under certain circumstances, an employer may require an employee to provide a fitness-for-duty certification upon their return to work stating that the employee is physically able to return to their position. As a condition of restoring an employee whose FMLA leave was occasioned by the employee’s own serious health condition that made the employee unable to perform the employee’s job, an employer may have a uniformly-applied policy or practice that requires all similarly situated employees (i.e. same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee’s health care provider that the employee is able to resume work. Under 29 C.F.R. §825.312(a), an employee returning to work from FMLA leave has the same obligations to participate and cooperate in the fitness-for-duty certification process as in the initial FMLA leave certification process.
Essentially, the certification from the employee’s health care provider must certify that the employee is able to resume work. Under the recent revisions to the FMLA, an employer may also require that the certification specifically address the employee’s ability to perform the essential functions of the the job. In order to require these specific certifications, however, an employer must provide an employee with a list of the essential functions of the employee’s job by no later than when the designation of FMLA leave notice is provided by the employer to the employee and the notice must specifically indicate in that the certification must address the employee’s ability to perform those essential job functions. If an employer fails to notify the employee of the requirement for a fitness-for-duty certification upon his return to work from leave, then the employer may not require such a certification from the employee.
An employer may not delay the employee’s return to work for the purpose of clarifying or authenticating a certification with the employee’s health care provider and an employer may not require a second or third opinion on the employee’s fitness to return to work. If an employer provides the proper notice of the requirement of a fitness-for-duty certification to the employee, an employee who does not provide the fitness-for-duty certification upon his return to work or who does not request additional FMLA leave is not longer entitled to reinstatement of his position under the FMLA.
There are some different rules that apply to employees on intermittent or reduced FMLA leave. An employer is generally not entitled to a certification of fitness to return to duty for each absence taken on an intermittent or reduced leave schedule. An employer may require a certification, however, for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his duties, based on the serious health condition for which the employee took such FMLA leave. If an employer chooses to require a fitness-for-duty certification under such circumstances, the employer must inform the employee at the same time it issues the designation notice that for each subsequent instance of intermittent or reduced schedule leave, the employee will be required to submit a fitness-for-duty certification unless one has already been submitted within the last 30 days. A reasonable safety concern means a reasonable belief of significant risk of harm to the individual employee or others. An employer may not terminate the employment of the employee while awaiting such a certification of fitness to return to duty for an intermittent or reduced schedule leave absence.