The FMLA Blog

Court Invalidates DOL Regulation Prohibiting Fitness for Duty Certification on Return from Intermittent FMLA Leave

29 CFR 825.310(g) prohibits an employer from conditioning an employee's return to work from intermittent FMLA leave on the production of a fitness for duty medical certification.  The validity of that prohibition was addressed by the court in Phipps v. County of McLean, No. 07-cv-1160, 2008 U.S. Dist. LEXIS 79714 (C.D. Ill. Oct. 7, 2008).  

Phipps sought to return to work from approved intermittent FMLA leave after, in this instance, a six-week absence.  He had taken approved FMLA leave on prior occasions due to the same serious health condition.  When she sought to return to work Phipps was told that she must provide a physician's certification indicating that she was medically cleared to perform her job duties.  She did not secure the certification.  Phipps was subsequently terminated for failing to call or show up to work her scheduled shift.     

In her FMLA suit, Phipps argued that her employer violated the FMLA by conditioning her return to work from FMLA leave on the production of a fitness for duty medical certification.  She cited the prohibition on such certification in 29 CFR 825.310(g).  The court rejected the employer's argument that absence was not intermittent because of its six-week duration.  The court noted that 29 CFR 825.203(d) places not limit on the size of an increment of intermittent leave.

The court, however, accepted the employer's challenge to the prohibition on fitness-for-duty certifications during intermittent leave set forth in 29 CFR 825.310(g).  Applying the analysis of the Supreme Court in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), the court found that 29 CFR 825.310(g) was an impermissible construction of the FMLA where the employee seeks to return from an extended intermittent absence.  The court noted that the statute does not distinguish between intermittent and block leave with respect to employers' entitlements to fitness-for-duty certifications.  The court went on to find that the absolute prohibition on fitness-for-duty certifications on an employee's return to work from an extended, intermittent absence fails to accommodate the legitimate interests of employers, one of the central purposes of the FMLA.

The court observed that the prohibition 825.310(g) contradicts the requirement in 825.214(b) that an employee must be able to perform all essential job functions on return from FMLA leave.  An employer, because of the absolute prohibition, would not have the means of establishing that fact prior to accepting the employee's return from extended intermittent leave.  The absolute prohibition, the court observed, is based on the DOL's unreasonable assumption that all employee's returning from intermittent leave --no matter how large the increment of intermittent leave taken or the reason for the leave, are automatically fit upon their return to work.  Without medical evidence,the automatic right of return from intermittent leave "creates the potential of putting other employees, patients, customers and clients in dangerous situation" due to the overly optimistic self-assessment of an employee's ability to safely return to work from intermittent leave.

The court recognized that 825.310(g) was intended to protect employees who require intermittent leave from the burden of producing a fitness-for-duty certification for each and every increment of leave.  The regulations, the court observed, "would be reasonable if the definition of intermittent leave were pared down to cover only employees who need to take one or two days, here and there, to treat an illness."  Where, however, as in the case, an employee takes intermittent FMLA leave in large blocks, the absolute prohibition on fitness-for-duty certifications as a condition to return an employee to work is unreasonable.  

The Court found that the employer did not violate the FMLA by conditioning Phipps return to work on the production of a fitness-for-duty medical certification.  The court awarded summary judgment to the employer.

Comment:  The decision invalidates 825.310(g) where the employee seeks to return from a lengthy block (several weeks) of intermittent leave.  If the intermittent absence was of a relatively short duration, the court would likely enforce the 825.310(g) prohibition on fitness-for-duty certifications.

The case is also interesting because it references as support the DOL's proposal (73 Fed. Reg. 7876, 7922, 7985 (Feb. 11, 2008)) to allow fitness-for-duty certifications as a condition of returning an employee from intermittent leave.  As proposed, the DOL would permit an employer to require an employee on intermittent leave to provide a fitness-for-duty medical certification every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist.  The DOL proposal is not effective, yet. 

       

Employer Policy Requiring that Return to Work Certification Specify Employee Could Work Without Restriction Violates FMLA

In Clark v. Gospel Light Publications, No. 1:06-CV-327, 2007 US. Dist. LEXIS 63000 (S.D. Ohio Aug. 27, 2006), the employer's policy required that the return-to-work medical certification specify that the employee could work full duty or without restriction.  The court found that this policy violated the FMLA.  Under the FMLA, a return to work medical certification need only be a simple statement of an employee's ability to return to work.  As such, an employer's obligation to reinstate an employee is triggered where a medical certification authorizes the employee to return to work, even if the certification does not address whether the employee can work without restrictions.      

Comment:  The decision illustrates a trap for unwary employers.  The FMLA allows employers to condition an employee's return from FMLA leave on submission of a medical certification that simply attests to the employee's ability to return to work.  On the other hand, it is well established that the FMLA right to job restoration is conditioned on an employee's ability to perform all essential job functions by the time they return to work from FMLA leave.  Some employers, like Gospel Light, make a mistake when they combine these requirements for purposes of the return to work medical certification. 

To avoid FMLA violations, employers need to keep the medical certification requirement separate from the requirement that the employee be able to perform all essential job functions on the return from FMLA leave.  Employers should not deny or delay an employee's return to work because the certification, while simply stating the employee was able to return to work, failed to state that the employee's was able to return to work without restriction, or similar language.   

An exception that would allow an employer to require more information than a simple statement of an employee's ability to return to work exists where the additional information is permitted by state law or the terms of a collective bargaining agreement. 

    

Ability to Resume Full Duties is Not Required in Return to Work Certification

In Carpo v. Wartburg Lutheran Home for the Aging, No. 05 CV 1169 (JG), 2006 U.S. Dist. LEXIS 74856 (E.D.N.Y. Oct. 16, 2006), the employer's policy required that employees returning from FMLA leave provide a doctor's certification that the employee was able to resume full duties.  On the expiration of 12 weeks of leave the employee returned with a handwritten doctor's note on a prescription slip reading: "Pt may attempt to return to work on 2/3/04."  The employer found the note unacceptable.  The employee was subsequently fired.  Carpo sued alleging interference with her FMLA right to return to work by her employer's refusal to accept her return to work certification.

The Court found the fitness-for-duty certification was sufficient as a matter of law.  DOL regulations provide that the certification "need only be a simple statement of an employee's ability to return to work."  29 CFR 825.310(c).  The court rejected the employer's argument that, to be valid, a certification attesting to the fitness for duty of an employee returning from FMLA leave must contain a definitive statement that an employee is able to return to her "full duties."  According to the court:

A simple statement that the employee can return to work, possibly including qualified language and possibly excluding specification of the level of work an employee is capable of, is all that the regulation requires.  Accordingly, the present of words like "attempt" and the absence of phrases like "full duties" in Carpo's not is not fatal...

The court observed that a definitive statement that an employee is able to return to her "full duties" is not supported by the plain language of the statue and DOL regulations.  The regulations, the court continued, "contemplated the presence of qualified, precatory, or broad language in a valid note," because it provides a procedure to clarify such notes and prohibits the employer from delaying the employee's return to work while such clarification is sought.   

The policies behind the FMLA, inadequate job security for employees with serious health conditions that prevent them from working for temporary periods, also supported the courts conclusion.  The court explained:

If accepted, Wartburg's interpretation of 29 CFR 825.310(c) would subvert this purpose.  Employers would be permitted to reject a doctor's certification simply the doctor had written, "It is my believe that employee can return to work," or "Employee likely can return to work safely, but should be careful and attentive."  In implementing the FMLA, the Secretary of Labor did not intend to make an employee's job security subject to he caprice of the language in a doctor's note, or to empower employers to play "gotcha" when notes fail to include talismanic phrases.  To the contrary, it has advanced the Congressional goal of providing job security for those employees who suffer from serious but temporary health conditions by requiring only a "simply statement of the employee's ability to return to work"--and nothing more--from the doctor.

The court also opined that, as written, the note satisfied the more demanding standard advocated by the employer.  According to the court, by stating that Carpo "may attempt return to work," the note conveyed the doctor's belief that, as a medical matter, Carpo was able to resume her work.  The qualifying language "may attempt" does not intimate that Carpo is incapable of resuming her full duties, the court found, Rather, it conveyed that the doctor was not absolutely certain, but, because it is very likely that she can, it is safe for her to try.

Comment:  The decision is interesting as much for what it doesn't say as what it does.  The decision enforces a literal reading of 29 CFR 825.310(c) regarding the permissible scope of a fitness for duty inquiry.  It does now, however, address the requirement in 29 CFR 825.214(b) that, to be entitled to job restoration from FMLA leave an employee must be able to perform all essential job functions.  Carpo's employer, in a sense, included the requirement that an employee be able to perform all essential job functions on their return as part of the return to work fitness-for-duty certification.  The court clearly held that the employer interfered with the employee's rights by incorporating this requirement as part of the fitness-for-duty certification.  Presumably, at least for this court, an employer must accept the return of an employee based on a simple statement that the employee may return, and then determine after the employee comes back to work whether the employee is able to perform all essential job functions.  If not, the employee would not have perfected his or her FMLA right to return to work.  Of course, the employee's return might be permitted pursuant to more generous agency policies, the terms of a collective bargaining agreement, or other laws.  If so, the employee's rights would be governed by those laws and not the FMLA.