Reinstatement can be denied after leave, law expert says

Q&A with Charlie Plumb

published in The Oklahoman | April 6, 2012

Charlie Plumb, leader of McAfee & Taft’s Labor & Employment Group, was featured in The Oklahoman in a Q&A with business writer Paula Burkes discussing a provision of the Family and Medical Leave Act (FMLA) which concerns job reinstatement.

Q: Under the Family and Medical Leave Act, most employees who qualify for protected medical leave are entitled to their jobs back once their doctor releases them. Are there any circumstances when an employer doesn’t have to reinstate an employee?

A: The law does provide a few exceptions. An employer does not have to reinstate an employee if that person gave unequivocal notice of their intention not to return to work while on leave. Furthermore, an employer is not obligated to reinstate an employee if it is determined that the employee is incapable of performing the essential functions of their former job.

Q: Who decides whether an employee is capable of returning to work?

A: In most cases, an employer will require the employee’s physician to certify, in writing, that the employee has completed medical treatment and to state whether there are any limitations to their returning to work. However, just because an employee’s medical condition has improved does not necessarily mean they are capable of performing all the essential functions of their former job. That’s why it is critical that the employer provide the physician with an accurate description of the job tasks and responsibilities.

Q: Are there any circumstances in which an employer can terminate an employee based on its belief that the employee is not capable of performing the job based on his medical condition?

A: Employers should not make decisions based upon assumptions or beliefs. They should rely on medical information they receive from physicians. It’s rare that an employer would override a physician’s fitness-for-duty determination, but it can happen. In a recent case before the 10th Circuit, a worker who suffered from recurring back pain and injuries sued his former employer alleging he was terminated in retaliation for filing a workers’ compensation claim and taking FMLA leave. While the employee’s personal doctor released him to work, the company’s physician — who had conducted exams, ordered tests and provided treatment over the course of several years — refused to release him to return to his job. The question before the court wasn’t whether the company was right, but whether it acted reasonably in relying on its own doctor’s conclusions. In this case, the court ruled the company did act reasonably because it was shown the doctor had thoroughly examined the patient and had taken his medical history and unsuccessful course of past medical treatment in consideration.

Q: What are some best practices employers can follow to ensure they aren’t threatened with a retaliation or discrimination lawsuit if they refuse to reinstate an employee coming back from medical leave?

A: First, companies should include a policy statement in their employee handbooks that says that they are entitled to require a fitness-for-duty medical release before reinstatement can occur. Second, before an employee is approved to take medical leave, the worker should acknowledge, in writing, their understanding of that policy. Third, the employee’s examining physician should be provided with a detailed fitness-for-duty release that specifies the employee’s essential job functions. Finally, companies should always act in good faith in relying on competent medical information.

This article appeared in the April 6, 2012, issue of The Oklahoman. It is reproduced with permission from the publisher. © The Oklahoma Publishing Company