FMLA Compliance: How and When to Use Enhanced Fitness-for-Duty Certifications

FMLA compliance can be full of potential missteps, so when the DOL releases updated guidance, it’s a good opportunity to revisit your approach. The latest focus? Medical certifications under the FMLA.   

Here’s a detail that often gets overlooked: FMLA regulations actually allow for two types of fitness-for-duty certifications.

In addition to the standard version, there’s a more detailed option – what employment law firm Jackson Lewis has called an “enhanced fitness-for-duty certification.”

So, what does that mean in practice – and how can this more thorough approach serve as a strategic tool for your organization?

Purpose of Fitness-for-Duty Certifications

To put enhanced fitness-for-duty certifications in context, it helps to understand the purpose of a standard certification and then look at how the enhanced version differs.

For example, the purpose of a standard fitness-for-duty certification is to get a healthcare provider to confirm whether an employee can return to work. 

But the purpose of an enhanced fitness-for-duty certification is to dig a little deeper to get more information. Specifically, an enhanced certification asks the healthcare provider to review the employee’s essential job duties and assess whether the employee is able to perform them. 

Put another way, a standard certification verifies that an employee is medically cleared to return to work, while an enhanced fitness-for-duty certification is an assessment of whether an employee can perform the essential functions of the job.

Enhanced Fitness-for-Duty Certification Compliance Checklist

The FMLA regulations set clear expectations for how fitness-for-duty certifications should be handled by both employers and employees. Under Section 312, these requirements are outlined in detail. 

If you require an enhanced fitness-for-duty certification assessing the employee’s ability to perform the essential functions of the job, you’ll need to check a few boxes to ensure FMLA compliance: 

• You 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
• You need to give the employee written notice that you’ll require an enhanced fitness-for-duty certification before they return
• That notice must include the essential functions the healthcare provider will need to evaluate, and
• You must give the notice no later than when you issue the FMLA designation notice.

Handled correctly, enhanced fitness-for-duty certifications can help HR make better return-to-work decisions and reduce legal risk without overstepping FMLA boundaries.

Enhanced Fitness-for-Duty Certifications: Use Cases and Examples

When are enhanced fitness-for-duty certifications useful? They can be especially helpful during return-to-work assessments if there’s concern that an employee may not be able to perform the essential functions of the job after returning from FMLA leave.

But what would this look like in practice? And how would this strategy hold up in court? Let’s look at three real-life examples. 

1. Mental Health Concerns

For conditions related to mental health, enhanced fitness-for-duty certifications may help confirm whether an employee is prepared to handle the job’s emotional and cognitive demands. Case in point:

In Connecticut, an employee suffered panic attacks and anxiety that resulted in several absences at work. She then took FMLA leave to get treatment. In light of the “psychiatric nature of the problems” that led to the employee’s FMLA leave, her employer said it required her to complete an enhanced fitness-for-duty certification.

When the time came, the employee completed the enhanced fitness-for-duty certification and returned to work. Then she quit and filed a multi-claim lawsuit. Among other things, she challenged the enhanced fitness-for-duty certification, alleging it interfered with her rights under the FMLA.

The court disagreed. Under the FMLA, employers “may require that the certification specifically address the employee’s ability to perform the essential functions” of the job, the court explained. 

Moreover, the employer “complied with all of the applicable FMLA regulations regarding the additional information requested” for the employee’s return to work, the court held. 

It dismissed the FMLA interference claim.

Lesson for HR: This case shows that courts recognize when employers are entitled to certain information. HR can require an enhanced fitness-for-duty certification if there’s concern about the employee’s ability to complete the essential job functions – so long as the employer follows all FMLA requirements outlined in the regulation. In this case, the court found no FMLA interference because the employer complied with the law.

Bento v. City of Milford, No. 3:13-CV-01385 (VAB) (D. Conn. 9/30/16). 

2. Light Duty Considerations

If you’re considering a temporary light-duty assignment, an enhanced fitness-for-duty certification can help clarify the tasks the employee can and can’t perform – and whether that will affect the employee’s essential job duties. Here’s a case:

An employee in Florida who worked as an IT director took FMLA leave after suffering a back injury. At some point during her leave, the employee notified her employer that she’d been medically cleared to return to work with light-duty restrictions. The employee said she was told she couldn’t return to work unless she was “100% cured” and that she needed a doctor’s note confirming that she could return with no restrictions. 

A few days before her leave expired, the employee said she was told she couldn’t return to work unless she provided a medical certification confirming that she was medically cleared to return to work without any restrictions.

Then, on the day her leave expired, she said she was warned that if she didn’t return at 100% within two days, she would be let go. After she was fired, she filed an FMLA lawsuit. 

The employer asked the court to dismiss the case. It argued that the employee lost her right to be restored to her job because she failed to provide a satisfactory fitness-for-duty certification.

Not necessarily, the court said. It explained the two types of medical certification – standard and enhanced – and pointed out that “FMLA regulations are more demanding on an employer who seeks to require the second type of certification,” noting the requirements about providing the employee with the list of essential job functions and the timing of the notices.

Here, the employer didn’t do those things that were required to obtain an enhanced fitness-for-duty certification, the court said. So all the employee was required to do was provide a certification from her healthcare provider stating she was able to resume work, which she did.

The court noted that there was a question about whether the light-duty restrictions were incompatible with the essential functions of the job. But the court didn’t have enough information about the job and its essential functions to make that call.

“Light duty restrictions do not automatically mean that an employee cannot perform the essential functions of her job,” the court pointed out. “Context is important.”

The court wrapped up its ruling with an admonishing note, saying if the employer had concerns about the employee’s ability to do her job, then it should have:

• Sought more info from her healthcare provider
• Requested that she submit to a medical examination, or
• Prevented the “issue in the first place [by requesting] the second type of fitness-for-duty certification.”

It refused to dismiss the claim.

Lesson for HR: This case serves as a reminder that courts pay close attention to how employers adhere to FMLA rules. To minimize legal risk related to enhanced fitness-for-duty certifications, HR professionals should use a compliance checklist that ensures all required procedures – including issuing clear notice and detailing essential job functions – are followed before imposing additional return-to-work requirements or considering termination.

Dykstra v. Fla. Foreclosure Attys., PLLC, 183 F. Supp. 3d 1222 (4/26/16).

Extended or Complex Medical Leave

When recovery is ongoing or the condition was serious, enhanced fitness-for-duty certifications may provide added clarity on job readiness. Consider this case:

A senior employee in Tennessee oversaw five offices that placed abused and neglected children. Due to the nature of the job, she traveled almost every day, worked around 60 hours a week, and was on call 24/7.

She told her employer she was dealing with ongoing health issues and needed to take time off. The employer approved her FMLA leave request and told her she’d need a fitness-for-duty certification to return. The notice included her job description and instructions for her doctor.

Her doctor cleared her to return with temporary restrictions: travel no more than once a week and work no more than 45 hours weekly. These limits were expected to last for two months, after which she would be reassessed.

But the employer refused to reinstate the employee under those conditions, saying it couldn’t guarantee a reduced workload due to serious staffing shortages and the demands of the job.

She filed an FMLA lawsuit, and the case went to the Sixth Circuit.

On appeal, the employee argued that her doctor’s note showed she could return with temporary adjustments. The employer disagreed, saying the note didn’t confirm whether she could do the essential functions of her job.

The appeals court looked at the FMLA regulation, which says a fitness-for-duty certification only needs to be a simple statement confirming the employee can return to work. The regulation also allows employers to contact the doctor for clarification but makes clear they can’t delay the employee’s return while doing so.

The court said the healthcare provider’s statement – even if basic – was enough to trigger the employer’s duty to reinstate her under the FMLA.

As for the employer’s claim that the note was insufficient because it didn’t address the essential job functions, the court said the employer should have followed up with the doctor.

The court also questioned how clearly the employer defined the job’s essential duties. 

The job description sent to the doctor didn’t specify the number of hours required and described the role only in general terms, like who the director would oversee and the programs they would supervise. In the court’s view, it contained “nothing helpful” to determine which job functions were truly essential.

The appeals court reversed the lower court’s ruling that the fitness-for-duty certification was inadequate. It remanded the case for further proceedings to determine whether the employee would’ve been able to complete the essential functions of the job.

Lesson for HR: Details matter, so you’ll want to make sure you dot your I’s and cross your T’s throughout the process when you request an enhanced fitness-for-duty certification. Ensure that job descriptions clearly define essential functions, and be sure to proactively follow up with healthcare providers if you need clarification.

Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996 (6th Cir. 11/2/05).

Key Takeaways for HR

• Strengthen your fitness-for-duty review process. Enhanced fitness-for-duty certifications offer a more comprehensive look at whether employees are prepared to resume key responsibilities, aligning medical clearance with job requirements.
• Standardize your approach. Applying fitness-for-duty certifications consistently for similarly situated employees reinforces FMLA compliance and helps mitigate risk.
• Make well-informed return-to-work decisions. Enhanced certifications offer clearer insight into an employee’s readiness to resume their role – driving more strategic decisions that balance employee well-being with the organization’s need for reliable staffing.

For more help handling FMLA compliance issues, check out The Family and Medical Leave Act: An Employer’s Guide.