The FMLA's return-to-work requirement.
Under the Family and Medical Leave Act, an eligible employee has the right to take up to twelve workweeks of covered leave for, among other things, for the employee's own serious health condition.
The FMLA prohibits an employer from interfering with an employee's FMLA rights. This includes the right to return to work from leave to the employee's prior position (or an equivalent one).
Although, an employee may not be required to take more FMLA leave than necessary, when the employer informs the employee that she is eligible to take leave, the employer can insist that the employee certify, as a condition of returning to work, that the employee can perform all essential job functions. The way this is done is by providing the employee with a list of essential job functions.
Why providing an employee with a list of essential job function is so important.
In Budhun v. Reading Hospital Medical Center, Ms, Budhun, a credentialing assistant (60% of her job was typing), took FMLA leave after breaking a bone in her hand [an enhanced version of this opinion is available to lexis.com subscribers]. To help treat the injury, Ms. Budhun's doctor taped the pinky, ring, and middle fingers on her right hand together to stabilize her pinky finger. Ms. Budhun told her doctor that she felt she could type with the five fingers on her left hand, and her thumb and index finger on her right hand. So, the doctor prepared a note, which read "No restrictions in splint."
After providing the doctor's note to Reading Hospital, Ms. Budhun attempted to return to work. However, the Reading Hospital would not permit Ms. Budhun to return, fearing that she could not perform her job at the same pre-injury level, without full use of all of her digits.
So, Ms. Budhun made use of her remaining digits sued the hospital for violating the FMLA.
Following a grant of summary judgment in favor of Reading Hospital, Ms. Budhun appealed. And the Third Circuit reversed, finding that Ms. Budhun had made a proper request to return to work, only to be rebuffed:
"Her 'fitness-for-duty' certification clearly stated that she could return to work with "no restrictions." ... An employer may require that this certification address the employee's ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave. It is undisputed that Reading did not provide Budhun a list of essential functions for her to present to Dr. Battista. Because Reading did not provide Budhun with such a list, Dr. Battista's fitness-for-duty certification was based only on the description of the job that Budhun would have supplied him. Budhun stated that Dr. Battista specifically asked her if she felt able to type, and she responded that she thought she could."
The court further underscored that, should an employer require clarification about a fitness-for-duty certification, the employer cannot delay the employee's return while attempting to contact the employee's physician.
How about some best practices...
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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