The U.S. Department of Labor, in its Family and Medical Leave Act Advisor, recently clarified what an employer may require of an employee seeking to return to work from an illness. If the employer requires, the employee must provide a medical certification of the employee’s fitness to return to work if the FMLA leave was taken for the employee’s own serious health condition.

The employer’s requirement must be made pursuant to a practice or uniformly-applied policy and FMLA applies only to the health condition which caused the employee to be unable to perform the functions of the employee’s job. For example, if the employee took FMLA leave because a back injury prevented the employee from loading trucks, the employer could not require the employee to submit certification regarding HIV.

The employer’s requirement for a fitness for duty medical certification must be communicated to the employee in writing, usually at the time the employee provides notice of the need for leave, or immediately after leave begins if unforeseeable.

The medical certification of the employee’s fitness to return to work may be only a “simple statement” from the employee’s doctor.

The requirement for a certificate of fitness to return to work must be job-related and consistent with business necessity pursuant to the Americans with Disabilities Act (ADA) as detailed in Regulations 29 CFR Part 825.310.  In a recent case I worked on, the trial judge interpreted the “job related” requirement very narrowly. The Judge opined that an employer must give specific job descriptions/job duties of all vacant positions to the employee’s physician, so the employee’s work restrictions may be precisely evaluated for his return to work. The judge opined that simply asking an employee for his/her “work restrictions” was overbroad and a violation of the law.  

To avoid this situation, employers may wish to err on the side of caution and be very precise when asking for “job-related” medical restrictions. For example, consider:

• Having specific jobs in mind when you make this request of your employees 
• Supplying the employee with written job descriptions that set forth the physical and mental requirements of the job

If all the employer’s notification responsibilities have been met, and the employee fails to provide a fitness certificate as required at the time the employee is to return to work, the employer may delay the employee’s return to work until the fitness certificate is provided.

Under some circumstances, if the employee fails to provide the fitness certificate, the employee may be terminated as noted in Regulations 29 CFR Part 825.311(c).   It should be noted that under California law, other considerations come into play.  This blog only considers Federal law.