The FMLA Blog

Employee's Right to Return to Work From FMLA Leave May Not Be Denied Based On Inability to Meet Non-Essential Job Function

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 difficulities 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. 

Of course, just because an employee does not have the FMLA right to return to work from leave does not mean that the employee is without recourse.  Employer policy, the terms of a collective bargaining agreement, and/or other state or federal laws may afford the employee a right to job restoration.            

FMLA Does Not Require that Employee be Totally Incapacitated

In Meadows v. Texar Federal Credit Union, No. 5:05CV158 (E.D.Tex. Jan. 22, 2007), the employer challenged the employee's claim that she was incapacitated within the meaning of the FMLA.  There, Meadows was granted FMLA leave for stress and depression.  Her request was supported with medical documentation.  During her absence from work, on the recommendation of her treating psychologist, Meadows went shopping, spent time with her children, driving them to and form school, and attending school and family functions. 

The employer argued that Meadows was not incapacitated within the meaning of the FMLA because, even though she was unable to work, she was able to perform these other regular daily activities during her leave.  The court disagreed. 

The FMLA defines incapacity as the "inability to work, attend school or perform other regular daily activities due th the serious health condition..."  The Court found that Meadows had demonstrated that she was unable to perform her work at Texar.  Plaintiff's ability to engage in regular daily activities while on leave, the Court found, "was not dispositive of Plaintiff's ability or inability to perform her work at Texar because of the alleged stress she felt from her job there."  The Court denied the employer's motion for summary judgment on plaintiff's FMLA claim.

Comment:  The decision rejects the employer's attempt to define "incapacity" for purposes of the FMLA to mean total incapacity both on and off work.  Essentially, the employer was arguing that an employee had to be unable to work and unable to perform regular daily activities to establish "incapacity" within the meaning of the FMLA.  The DOL regulations, on the other hand, define "incapacity" in the alternative as the inability to work or inability to perform other regular daily activities.  Based on a plain reading of the text the Court, in my opinion, was justified in rejecting the employer's argument. 

The FMLA definition of incapacity using alternatives other than work was not intended to place additional reequiements on an employee where the need for leave was due to the employee's own serious health condition. Rather, the alternatives were added because an employee may need leave to care for a spouse, son, daughter, or parent incapacitated by a serious health condition.  The spouse, son, daughter, or parent may not have a job.  Children may be to young to work. Parents may have retired.  The spouse may be home tending to young children, attending school, or painting great works of art.  To address the very likely prospect that a covered family member might to have a job the DOL added alternative categories of incapacity, including the inability to perform other regular daily activities. 

Lifetime Condition Did Not Prohibit Recertification Every 30 Days

In Parsely v. The City of Columbus, 2006 U.S. Dist. LEXIS 72185 (S.D.Ohio Oct. 3, 2006) the employee argued that his employer violated the FMLA by requiring him to recertify his serious health condition every thirty days.  Specifically, he argued that because his physician had certified that his back condition was lifelong his employer was precluded by 29 CFR 825.308(b)(1) from requiring that he recertify every thirty days unless the employee requests an extension of leave, circumstances have changed significantly, or the employer receives information that casts doubt on the continuing validity of the certification. The employee argues that none of these circumstances are involved.  The Court found that 29 CFR 825.308(b)(1) did not apply.  That provision, the Court observed, “does not refer to the minimum duration of the health condition.  Instead it pertains to the “period of incapacity.”  The Court agreed with the employer that the recertification request was governed by 29 CFR 825.308(a) which permits recertification every 30 days for chronic or permanent/long-term conditions. 

Comment: The FMLA permits an employer to update a medical certification by means of a medical recertification.  The frequency with which an employer may demand that an employee recertify their medical condition, however, is regulated by the FMLA.  An employer is generally prohibited from demanding that the employee recertify the medical condition more frequently than the minimum period of incapacity specified by the health care provider, with some exceptions.  That minimum period of incapacity may be more than thirty days.  As in Parsely, many employees confuse the “minimum period of incapacity” with the duration of the condition.  Remember, a period of incapacity generally means the inability to work, attend school, or perform other regular daily activities due to the serious health condition. A lifetime condition may or may not involve lengthy periods of incapacity.