Fitness-For-Duty Certification Under the FMLA

This update is the sixth in a series of articles explaining requirements under the Family and Medical Leave Act (FMLA). Revised regulations, which took effect January 16, made sweeping changes to FMLA requirements and procedures.

As discussed in "The Medical Certification Process," the FMLA permits employers to require an employee to provide a medical certification to support the need for leave due to a serious health condition of the employee or of certain members of the employee's family. Additionally, as a condition of reinstating an employee whose FMLA was based on the employee's own serious health condition, the FMLA allows an employer to require a fitness-for-duty certification from an employee's health care provider stating that the employee is able to resume work.

This article discusses the current FMLA rules regarding the fitness-for-duty certification process.

General Rules

A fitness-for-duty certification may be required only when the employer has a uniformly-applied policy that requires all similarly situated employees (i.e., same occupation, same serious health condition) to provide a fitness-for-duty certification as a condition of reinstatement. Further, a fitness-for-duty certification may be required only when the need for FMLA leave is based on the employee's own serious health condition. Finally, the employer may seek certification only for the condition that necessitated the leave.

In most cases, an employer is not entitled to a fitness-for-duty certification for each absence taken on an intermittent or reduced leave schedule. However, if reasonable safety concerns exist (discussed in more detail below), an employer is entitled to a fitness-for-duty certification for such absences up to once every 30 days.

Fitness-For-Duty Certification Process

If an employer has a uniformly applied policy and will require an employee to provide a fitness-for-duty certification, the employer must notify the employee of this requirement in the FMLA designation notice provided to the employee at the beginning of the leave.

Additionally, an employer may now require that the fitness-for-duty certification specifically address the employee's ability to perform the essential functions of his or her job. To do this, an employer must provide the employee with a list of the essential functions of the employee's job no later than with the FMLA designation notice and must indicate in the designation notice that the certification must address the employee's ability to perform those essential functions.

The employee has the same obligations to participate and cooperate in the fitness-for-duty certification process as he or she does in the initial medical certification process. Similar to the medical certification process, an employer may contact the employee's health care provider if clarification or authentication is needed regarding the fitness-for-duty certification that the employee has provided to the employer. The employer may not delay the employee's return to work while attempting to contact the health care provider.

Finally, no second or third opinions on a fitness-for-duty certification are allowed. However, if an employer is concerned about the health care provider's fitness-for-duty certification, the employer may, consistent with the Americans With Disabilities Act (ADA), require a medical examination (at the employer's expense), but only after the employee has returned to work. As required by the ADA, the medical examination must be job related and consistent with business necessity. Once again, the employer cannot delay the employee's return to work while arranging for and having the employee undergo a medical examination.

Fitness-For-Duty Certification When Reasonable Safety Concerns Exist

As mentioned above, if an employee takes leave on an intermittent or reduced leave schedule and the employer can show that a "reasonable safety concern" exists regarding the employee's ability to perform his or her duties based on the serious health condition which occasioned the leave, an employer is entitled to a fitness-for-duty certification up to once every 30 days. A reasonable safety concern means a reasonable belief of significant risk of harm to the individual employee or others. In determining whether a reasonable safety concern exists, an employer should consider the nature and severity of the potential harm and the likelihood that potential harm will occur.

If an employer chooses to require a fitness-for-duty based on reasonable safety concerns, the employer must tell the employee at the time the FMLA designation notice is issued that the employee will be required to submit a fitness-for-duty certification once every 30 days. Alternatively, an employer may set a different interval for requiring a fitness-for-duty certification as long as it does not exceed once every 30 days and as long as the employer advises the employee of the requirement before the employee begins the intermittent or reduced schedule leave.

Employee Non-Compliance

Provided that the employer furnishes all the required notices, the employer may delay reinstatement until the employee provides a completed fitness-for-duty certification. If the employer has provided all the required notices, and the employee does not provide either a fitness-for-duty certification or request additional FMLA leave at the time FMLA leave is concluded, the employee is no longer entitled to reinstatement under the FMLA.

Going Forward

Employers must revise their FMLA policies, forms and practices in light of the new regulations. For assistance in doing so, please contact one of the lawyers in the Faegre & Benson employment counseling and compliance practice.

Further details are necessary for complete understanding of the subjects covered by this summary. For this reason, seeking specific advice of legal counsel is recommended before acting on any matter discussed in this article.