- TOP TIP: FMLA, ADA and Fitness for Duty Examinations
- July 21, 2014
- Law Firm: Kohrman Jackson Krantz PLL - Cleveland Office
When an employee comes back from Family and Medical Leave Act leave with a fitness-for-duty (FFD) certification from his health care provider, some employers still require the employee to undergo a separate FFD examination by the employer's own health care provider or employee health office before allowing the employee to return to work. Those employers typically say that their own doctors or health offices have a better understanding of what the employee's job actually involves than the employee's doctor, so they can better evaluate whether the employee is actually able to do the job. The problem is that this additional pre-return FFD examination violates the FMLA.
The Department of Labor specifically addressed this issue in its comments in issuing its revised FMLA regulations:
An employer may not require that an employee submit to a medical exam by the employer's health care provider as a condition of returning to work. A medical examination at the employer's expense by an employer's health care provider may be required only after the employee has returned from FMLA leave and must be job-related and consistent with business necessity as required by the ADA. Thus, if an employer is concerned about the health care provider's fitness-for-duty certification, the employer may, consistent with the ADA, require a medical exam at the employer's expense after the employee has returned to work from FMLA leave as stated in [the FMLA regulations]. The employer cannot, however, delay the employee's return to work while arranging for and having the employee undergo a medical examination.
So while an employer cannot reject a doctor's FFD certification under the FMLA, it does have the ability to require further medical evaluation under the ADA after the employee is returned to work, as long as the examination is job-related and consistent with business necessity. In other words, these examinations should not be required as a matter of course for all employees returning from leave, but only where there is a specific concern about an individual employee.
As for the employer argument referenced above that its own doctors are better informed about the employee's job, employers should also seek to educate the employee's doctor about the job in question, by providing a detailed job description with the request for an FFD certification (which must be made at the time the leave is designated as FMLA leave). And even though no second and third opinions are permitted under the FMLA for an FFD certification, if a certification is incomplete (not fully filled out) or insufficient (vague, ambiguous or non-responsive), the employer can notify the employee in writing of the deficiency and require the employee to fix the deficiency within 7 days. In addition, the employer can seek authentication and clarification of the certification, if there is suspicion that the certification was not actually provided by the doctor, or if the employer needs assistance understanding the handwriting or the meaning of a response on the certification.