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Return To Work: Fitness For Duty Requirements

Return To Work: Fitness For Duty Requirements

When an employee has indicated that he or she is ready to return to work from an FMLA leave because of his or her own serious health condition, the employer can require that the employee provide a medical certification showing that he or she is physically able to return to work.

The regulations require satisfaction of the following requirements:

  • The "fitness-for-duty" certification requirement can only be made as part of a uniformly-applied policy that requires all employees with the same occupation, the same serious health condition to provide the certification
  • If state or local law, or the provisions of a collective bargaining agreement apply in such an instance, these provisions are to be applied to the situation
  • To be consistent with the Americans with Disabilities Act (ADA), the fitness-for-duty certification must be job-related and consistent with business necessity (i.e., the certification can only relate to the employee's ability to perform the essential functions of his or her job and to his or her specific impairment). The regulations indicate that this certificate need only be "a simple statement of the employee's ability to return to work."
  • However, if the employer attaches the employee's job description or list of essential functions to the designation notice, the fitness for duty note must address the employee's ability to perform those essential functions
  • The cost of this certification is the responsibility of the employee, and the employer is not required to pay the employee for time or travel costs related to acquiring the certification
  • The fitness for duty requirement must be disclosed to the employee in the designation notice at the beginning of the leave

As long as proper disclosure of this requirement is made, the employer can delay restoration to employee until an employee has complied with this requirement. The regulations further provide that if disclosure of this requirement is properly made, and the employee fails to provide the fitness-for-duty certificate or a new medical certification for a serious health condition showing that additional leave is required, the employee may be terminated.

The employer cannot do any of the following with respect to the fitness-for-duty certification requirement:

  • Require a fitness-for-duty certification when the employee returns from an intermittent leave or a reduced scheduled leave; except where a workplace safety issue may reasonably exist, the employer may ask an employee's healthcare provider to certify the employee's fitness for duty each time he or she returns to the workplace, even when the employee takes intermittent leave
  • Obtain a second or third opinion on the certification
Just as with medical certifications, the employer may contact the employee's health care provider to clarify and/or authenticate the fitness-for-duty information given. Related Links
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