Make sure you’re fit to administer the FMLA’s fitness-for-duty certification requirements

Paid family leave form in clipboard and note pad.

Maybe you’ve experienced this: an employee experiences a serious health condition, you provide the required FMLA paperwork, and the certification form either comes back not fully filled out or so vague that you are unable to figure out whether a serious health condition even exists. In these circumstances, FMLA regulations spell out exactly what steps employers can take to address these shortcomings: the employer must give the employee written notice of the missing or insufficient information and an opportunity provide it.

Or maybe you’ve experienced this: you receive a complete certification form, but you have good reason to doubt its validity. For example, maybe the certification states the employee cannot perform essential functions that the employee has been and continues to perform. Again, in these circumstances, comprehensive FMLA regulations tell us what to do next: request a second opinion, maybe even a third.

And perhaps you’ve experienced this: an employee experiences a significant serious health condition and goes out on extensive FMLA leave. Despite the significance of the issue, you receive a minimal return-to-work notification from a health care provider, stating only that the employee has been fully released to work.

The fitness-for-duty certification process

The return-to-work or fitness-for-duty concept arises in a variety of contexts: FMLA, workers’ compensation, multi-day absences from work due to illness (hello, flu season), etc.  In the FMLA context, this process is very specifically addressed by regulations enforced by the U.S. Department of Labor. Employers must be aware of these FMLA-specific procedures.

While the FMLA allows employers to require fitness-for-duty certifications as a condition of job restoration, there are two prerequisites for the request. First, they can only be “requested by the employer pursuant to a uniformly applied policy for similarly-situated employees.” In other words, you must have a consistently applied practice or policy. Second, the employer must indicate in the designation notice (Form WH 382) provided shortly after a request for FMLA leave is made or the need for FMLA leave arises that a return-to-work certification will be required. 29 C.F.R. §§ 825.312(a), 825.313(d).

If both of these requirements are met, an employer need not return an employee to work following FMLA leave unless or until the employee provides the fitness-for-duty certification. The employer can deny or delay job restoration until the certification is provided. The employer can even terminate if a certification is not provided after reasonable opportunity to present it.

As a general rule, a fitness-for-duty certification need only contain a statement from “the employee’s health care provider…that the employee is able to return to work. If the employer attaches a list of essential job functions of the employee’s position to the designation notice (Form WH-382), the employer can require that the fitness-for-duty certification “address [the employee’s] ability to perform essential job functions.” But even if the employer goes this route, the certification need only contain a statement from “the employee’s health care provider…that the employee can perform the identified essential functions of the job.” 29 C.F.R. §§ 825.212(b), (d).

Note that this regulation does not require a statement from the health care provider that treated or prescribed the treatment for the condition for which the employee took FMLA leave. For purposes of the FMLA, a “health care provider” includes doctors of medicine or osteopathy, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, and physician assistants. The term is defined by both the Act itself and the Act’s regulations, neither of which define the term as a “treating” provider.

If the employee provides this type of statement from the employee’s health care provider, and the employer has concern or doubt about the employee’s ability to return to work, the employer is very limited in what it can do next. It can request “clarification” – i.e., it can contact the health care provider only to “understand the handwriting on the medical certification or to understand the meaning of a response.” It can also seek “authentication” – i.e., provide the health care provider with a copy of the certification and have the provider certify that they completed (or authorized the completion of) the certification, and/or signed it.). “Employers may not ask health care providers for additional information beyond that required by the certification form.” An employer cannot delay job restoration while it seeks clarification and/or authentication. In addition, “no second or third opinions on a fitness-for-duty certification may be required.” 29 C.F.R. §§ 825.307(a); 825.212(b).

Under the FMLA, if a sufficient return-to-work certification is provided – and it’s a relatively low bar – the employer must return the employee to work in the same or an equivalent position – even if the employer has good reason to believe the employee may not be quite ready to return. If this happens to you, you are free to monitor the employee’s work-related performance after the return to work to ensure that they are able to perform essential functions (with or without accommodation). You remain free to address any performance-related issues with the employee, and to address any health-related concerns or accommodations that are raised.