At the time an employee’s protected leave is coming to a close, many employers send the individual a “Job Readiness” or “Fitness-for-duty” form. There are many sound reasons for such a process including:
- Confirmation of the individual’s condition (rather than relying exclusively on the employee’s own assessment or representation);
- Preventing employees from abusing medical leave time; and
- Providing some assurance of an employee’s ability to perform a particular job by a health care provider who is well-informed about the employer’s workplace and job functions.
Using a Medical Certification The FMLA requires that employers notify an individual on FMLA leave up front about the eventual need for a fitness-for-duty certification from a health care provider releasing the individual to work. The FMLA places another restriction on the form in that it can only seek certification with respect to the specific health condition that caused the employee’s need for leave and not all unrelated medical conditions which may affect the individual’s health and physical capabilities. Employers must demonstrate that they have a policy of using medical fitness-for-duty forms and that such policy has been uniformly applied, requiring all individuals who take leave for such conditions to obtain certification from a health care provider that the employee is able to resume work. Therefore, it is crucial that when requiring medical certification to return to full duties, employers should attach a copy of the individual’s job description so that the doctor preparing the form knows the essential functions of the position in making a determination about the person’s ability to perform them.
Second Medical Opinions The FMLA states that an employer must use caution not to condition an individual’s return to work on his or her examination by a second doctor or other type of health care provider. At the return-to-work stage of leave under the FMLA, employers are forbidden from requiring additional medical opinions other than the one submitted by the employee. It is solely within the discretion of the employee’s health care provider to determine if a second medical examination is in order with respect to the determination of returning to full duties. If the medical certification provided by the employee is ambiguous or confusing, an employer, with authorization from the employee, may seek further input from the employee’s doctor for purposes of clarification only. The situation changes when the individual is returning from a generalized ADA leave of absence (as opposed to one stemming from the FMLA) and the employer objectively believes the employee poses a direct threat if placed back in the same position. Under those conditions the ADA permits an employer to select the doctor who will perform the fitness-for-duty exam. The use of the fitness-for-duty form is important in order to determine whether or not the particular employee can return to the same or comparable position as required under the ADA or to do so would impose undue hardship upon the employer. Second opinions are also possible based upon these conditions and under any circumstance, the employer must pay for the examination.
Example – Employee has returned to work and the employer believes that he or she is not performing the essential functions of the job and the employer reasonably believes that the problem stems from the medical condition for which the employee was granted a leave of absence and the employee has already completed a fitness-for-duty certification. Under these circumstances the employer would be permitted to seek a second opinion from a medical provider of its choice and at its cost. The examination must be job-related and consistent with business necessity. The employer may not prohibit the person from continuing to work pending the results of the second exam.
Tips and Conclusion- Employers should avoid policies that require an employee returning from a medical leave of absence to demonstrate that they are 100% able and ready to perform their job. Some courts and the EEOC have ruled that that is a violation of the ADA in that employees are entitled to return to their jobs if they can perform the essential functions thereof.
- Review all current policies and practices relating to fitness-for-duty examinations and ensure consistency and compliance with all related laws.
We hope you found this information of value. Please do not hesitate to contact Holman HR with any questions you may have. 