Yesterday, I presented a section of the FMLA Master Class. In my session, we discussed mandatory return-to-work exams done by the employer's selected doctors. There were lots of questions on this issue as many employers continue to require return-to-work exams as a matter of course before employee can return to work after FMLA leave. In many instances, such a practice will be in violation of the ADA and the FMLA. I promised a more thorough discussion of the issue, so here it is.
FMLA Regulations on Return-To-Work and Fitness-for-Duty Exams
The FMLA regulations state the following:
- As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition), who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or providing sufficient authorization to the health care provider to provide the information directly to the employer) in the fitness-for-duty certification process as in the initial certification process. See §825.305(d).
- An employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee's need for FMLA leave. The certification from the employee's health care provider must certify that the employee is able to resume work. Additionally, an employer may require that the certification specifically address the employee's ability to perform the essential functions of the employee's job. In order to require such a certification, an employer must provide an employee with a list of the essential functions of the employee's job no later than with the designation notice required by §825.300(d), and must indicate in the designation notice that the certification must address the employee's ability to perform those essential functions. If the employer satisfies these requirements, the employee's health care provider must certify that the employee can perform the identified essential functions of his or her job. Following the procedures set forth in §825.307(a), the employer may contact the employee's health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Clarification may be requested only for the serious health condition for which FMLA leave was taken. The employer may not delay the employee's return to work while contact with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required. 29 CFR § 825.312
These regulations make clear that the normal fitness-for-duty certification as prerequisite to return to work after FMLA leave is to be completed by the employee's own health care provider, not the employer's doctors. And a second opinion may not be requested. The requirements that it is uniformly applied and employee receives notice, relate to a fitness-for-duty certificate coming from the employee's HCP, not a return-to-work exam conducted by the employer.
Therefore, what is an employer to do when it has a genuine concern about an employee's ability to effectively perform the functions of his or her position, notwithstanding a cursory note from the employer's doctor stating otherwise? Under the FMLA, it appears the employer is out of luck.
ADA Comes to the Rescue - Sometimes
Here's where ADA may come to the rescue. The FMLA regs state that ADA requirements apply, and under the ADA employers have the right to conduct medical examinations to determine whether an employee can perform the essential functions of his or her job (with or without reasonable accommodation) in certain situations. Therefore, after an employee returns from FMLA leave, a medical examination at an employer's expense by the employer's health care provider may be required if it is job-related and consistent with business necessity. A number of cases have explored what qualifies as "job related and consistent with business necessity." The key criteria are as follows:
There is a reasonable basis for the exams.
The employer must have a "reason to doubt the employee's ability to perform the essential functions of the job." For instance, a discrepancy between the doctor's original letter and return-to-work certificate would be a reasonable basis. But, short of information from the employee's own provider which leaves doubt, what will at court consider a "valid reason to doubt the employee's ability to perform the job?" Certainly, direct observation of the employee's physical restrictions, on or off the job, would be sufficient. Many employers, however, seem to feel it is their right to have their own HCP conduct an exam, when there is little or no objective basis for doubt of what the employee's HCP is telling them. It appears that courts in very limited circumstances have found such exams as "job related and consistent with business necessity - when the reason for leave directly related to and impacted the employee's ability to safely perform the job. For example, a police officer who breaks his arm. His ability to carry and discharge a gun is so critical to his safe performance if his job duties, that if his employer required a RTW exam narrowly tailored to the use of his arm, this would probably be upheld even if there was not a reasonable basis to doubt the officer's HCP opinion that his arm was fully functioning.
The exams are narrowly focused.
The medical exam should seek only information about the effect of the particular injury or illness that necessitated the leave on the employee's ability to return to work. Don't request a general physical or a return-to-work certificate stipulating the employee is in "good health." This again, is where many employers get into trouble. Many employers require the employees to provide medication information far beyond the original condition generating the leave. The more narrowly focused the RTW exam is, the less likely a court will delve into whether or not there was a reasonable basis for the exam in the first place.
The medical examination requirements are applied consistently.
Of course, as with all employment best practices, similarly situated workers must be treated the same.
If your organization requires return-to-work physicals by its own health care provider as a matter of course for employees returning from FMLA leave, you need to take a close look at this practice. If you don't have a reasonable basis to believe the employee is unable to perform their duties safely, then you should not be requiring these exams. If you maintain this practice despite my advice otherwise, you should ensure that they are narrowly tailored to the injury or illness that necessitated the leave. Failure to narrowly focus the exams or to have a reasonable basis to conduct them in the first place will leave your organization exposed under both FMLA and ADA.