Under the FMLA, an employee is entitled to reinstatement to his or her former, or an equivalent position upon returning from FMLA leave. However, the right to job restoration is qualified; it is not absolute. The FMLA does not require an employer to reinstate an employee who is unable to perform all of the essential functions of the employee's pre-leave position at the time the employee seeks to return to work.
In Carstetter v. Adams County Transit Authority, No. 1:06-CV-1993, 2008 U.S. Dist. LEXIS 51874 (M.D. Pa. July 8, 2008), the plaintiff worked as a vehicle maintenance mechanic for ACTA. The position primarily required him to perform routine maintenance on county vehicles. His position required that he occasionally drive ACTA vehicles to move or test them incident to the performance of maintenance. ACTA required Carstetter to obtain an annual medical clearance from the Pennsylvania DOT, which is necessary to operate commercial vehicles on public roads. As a maintenance mechanic, Carstetter did not operate commercial vehicles on public roads.
Carstetter suffers from diabetes, sleep apnea, depression, and anxiety. He took and failed his required DOT medical examination shortly before it expired. He alerted his supervisor that he would not be able to renew his medical clearance before the expiration date. Carstetter requested FMLA leave prior to the expiration date to address the situation. ACTA did not place him on FMLA leave, but granted him short-term disability. It subsequently fired Carstetter when he applied for unemployment benefits to make up for the short-fall in pay from short term disability (which paid 60% of his salary).
Carstetter sued, alleging interference with and retaliation for exercising his FMLA rights. ACTA objected to the recommendation of the magistrate judge denying summary judgment to the ACTA on the FMLA claims. ACTA argued that it did not interfere with his right to return to work from FMLA leave because Carstetter's medical condition prevented him from performing the essential function of his position, which included the ability to obtain annual medical clearance. The court disagreed.
The court found that Carstetter raised a genuine issue of material fact regarding his ability to perform the essential functions of his job as a mechanic. The evidence established that, at the time of his request to return to work, Carstetter could operate vehicles for up to 30 minutes without a break, replace tires, change engine fluids, wash vehicles, sweep, and perform other vehicle maintenance duties without accommodation. Significantly, the court also found that a reasonable jury could conclude that his ability to secure a medical clearance to drive commercial vehicles on public roads was not an essential function of his duties as a vehicle maintenance mechanic. As such, ACTA may have interfered with his right to return to work.
Comment: The decision illustrates two points. First, an employer cannot deny an employee's return from FMLA leave simply because the employee cannot perform all of the jobs requirements on return. To properly deny an employee's return to work from FMLA leave, an employer must establish that the employee cannot perform all of the essential functions of the job. Whether a function is essential is determined by ADA standards. An employee's inability to perform ancillary or non-essential job functions does not relieve an employer from accepting the employee's return from FMLA leave. Stated differently, an employer that refuses to return an employee from FMLA leave based on the employee's inability to perform a non-essential job function violates the FMLA.
Second, the decision of the court appears incorrect. The decision assumes that Carstetter's leave request to address his difficulties in securing DOT medical clearance qualifies under the FMLA. There was no evidence that Carstetter was eligible for FMLA leave benefits, or that he was otherwise incapacitated due to a serious health condition within the meaning of the FMLA. Indeed, the court's opinion that the medical clearance was not an essential job function critically undermines its assumption that Carstetter was on FMLA leave.
The FMLA states that an employee is unable to perform the functions of his or her position where the employee is unable to perform one of the essential functions of the position within the meaning of the ADA. 29 CFR 825.115. If, as the court opined (again, for purposes of summary judgment), that the ability to secure a medical clearance is not an essential function of a mechanics position for purposes of return to work, it would not support Carstetter's request for FMLA leave in the first place. As such, there was no genuine issue of material fact to preclude summary judgment for ACTA.
It is unclear whether the decision is applicable to federal civil service employees covered by Title II of the FMLA. The OPM regulations implementing Title II do not include language qualifying an employee's return to work from leave based on the employee's ability to perform all essential job functions. Nor do the OPM regulations distinguish between essential or non-essential job functions.
The OPM regulations do, however, state that an employee is not entitled to be returned to the same or equivalent position if the employee would not otherwise have been employed in that position at the time the employee returns to work. 5 CFR 630.1208(f). If it could be demonstrated that an employee would not be employed in the position where the employee was unable to perform all of the essential functions of the position, the same would be true for an employee returning from FMLA leave. Absent regulatory limitation, if the employer would not employ an individual who was unable to perform all of the non-essential functions of a position, the agency would not be required by the FMLA to return an employee to work from leave. Title II could be more restrictive than Title I in this regard, depending on the facts.
Of course, even if the employee does not have an FMLA right to return to their same or equivalent position, they may have that right pursuant to agency policy, the terms of a collective bargaining agreement, or as required by other laws.