If you’re concerned an employee won’t be able to take on his or her job responsibilities after FMLA leave, here’s a tool you can use to protect your company.
It’s being referred to as an “enhanced” fitness-for-duty certification. What is it?
These certifications go beyond the standard fitness-for-duty certifications you’re used to.
Under a standard certification, a healthcare provider may simply state whether or not an employee is able to return to work.
“Enhanced” certifications dig deeper, asking healthcare providers to review the essential functions of employees’ jobs and put in writing whether or not employees are actually capable of performing those functions.
The caveats for using these certifications:
- An employer must provide written notice to an employee of the requirement to complete the enhanced fitness-for-duty certification before returning to work.
- This notice must include the essential functions to be reviewed by the provider.
- This notice must be provided no later than the time of the FMLA designation notice.
- An employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same medical condition) who take FMLA leave to complete the fitness-for-duty certification process.
The certification process in practice
The enhanced certification process was recently brought to light in a recent lawsuit in which Erica Bento, a full-time community outreach worker, sued her employer, the City of Milford, CT. Bento claimed that the city interfered with her rights under the FMLA after the city delayed her ability to return to work until she completed an enhanced fitness-for-duty certification.
Bento returned from FMLA leave with a statement from her physician stating she was ready to return to work. But the city said the certification didn’t address Bento’s ability to perform the essential functions of her job. It then said Bento couldn’t return to work until the certification was completed.
Following the delay, Bento resigned from her position and filed the lawsuit. She said the city illegally delayed her reinstatement by asking her to complete a more detailed certification than her healthcare provider originally gave her.
Who was right?
A U.S. district court ruled the city was well within its rights to delay Bento’s reinstatement until she completed the enhanced fitness-for-duty certification process because it:
- provided Bento with a letter stating that she needed to provider her supervisor with a note from her doctor that had to acknowledge she was able to safely perform the duties and responsibilities of her job prior to returning to work
- provided that letter at the same time Bento’s FMLA leave request was approved, and
- included a job description detailing the essential functions of Bento’s position with the letter.
The result: The court dismissed Bento’s lawsuit.
One thing to keep in mind that the court didn’t address in this case is the overlap between the FMLA and the ADA, and the potential need to provide additional leave time under the ADA to accommodate an employee’s disability.
Courts, as well as the EEOC, have been trying to hammer home the point that when an employee is unable to return to work after he or she’s exhausted FMLA leave, employers typically should consider entering the ADA’s interactive process to determine if more leave — or some other accommodation — would reasonably help the employee return to performing the essential functions of the job.
It’s likely that the intersection of the FMLA and the ADA wasn’t an issue in this case because it appeared the City of Milford was willing to grant Bento more time to complete the certification.
Cite: Bento v. City of Milford