by Do you want assurance that an employee is fit to return to work after a leave of absence taken under the Family and Medical Leave Act (FMLA)? Employers may require an employee to provide such a certification if the employer has followed specific regulatory requirements at the right time.
First, the employer must have a uniformly applied policy or practice that requires all similarly-situated employees to provide a fitness for duty certification. Employers are encouraged to have the policy in writing. Without a written policy, the employer may be unable to prove that such a policy exists and has been uniformly applied.
Second, the employer must provide written notice of the requirement at the time the employer provides the notice to the employee that a requested leave is covered by the FMLA (i.e., the designation notice). The employer cannot wait until the employee tells the employer of their intention to return to work to announce the need for a fitness for duty certification. The employee must be notified of the requirement at the outset of the leave approval.
The health care provider’s fitness for duty certification generally only needs to state that the employee is able to resume work. There is an exception to this limitation if the employer provided a list of the essential job functions to the health care provider no later than the employee’s leave designation notice. If so, the employer may also require that the return to work fitness certification address the employee’s ability to perform those essential functions upon return to work.
While the employer may contact the employee’s health care provider for purposes of authenticating the fitness for duty certification, it cannot delay the employee’s return to work while contact with the health care provider is being made.
Fitness for duty certification issues are among many FMLA interpretation questions an employer may have. The federal Department of Labor (DOL) enforces FMLA law and regulations and has developed an on-line Family and Medical Leave Act Advisor to assist employers. It can be found at https://webapps.dol.gov/elaws/fmla.htm. This tool provides easy-to-understand explanations of what is required under the FMLA and information on how to manage FMLA requests.
