When an employee returns from medical leave, employers often question the employee’s “fitness” to return to duty. Most employers have written policies requiring employees to produce a medical note from their doctor releasing them back to work. However, a medical release does not always resolve the issue and the employer may have additional concerns.
For example, consider a situation I recently encountered with a client. An employee had been off work for an extended period due to depression and mental problems. He completed a medical certification and was approved for leave under the Family and Medical Leave Act (FMLA). During his absence, the employee posted numerous comments on his Facebook page which indicated that he may be suicidal and reckless. Shortly after the Facebook post, his doctor released him back to work without any restrictions. This raised serious concerns for the Company and coworkers who saw the Facebook posts.
What can the employer do under the FMLA?
Under the FMLA, the employer does not have to accept a general release to return to work. Instead, the Company can require the employee’s doctor to provide a fitness-for-duty certification. Under a fitness-for-duty certification, the employee’s doctor must specifically address the employee’s ability to perform the essential functions of his or her job. The employer can provide a list of the essential job functions and other relevant information for the doctor to consider (i.e., a copy of the Facebook post or any other recent information raising concerns about the employee’s mental stability).
There are a couple of things to note about a fitness-for-duty certification. First, the employer must have a uniform policy or practice that requires all similarly-situated employees to obtain and present the certification. Second, once the certification is completed, the employer cannot challenge the doctor’s opinion by seeking a second or third opinion. An employer may call the employee’s doctor to obtain a clarification or to authenticate the document, but cannot go any further or delay the employee’s return to work.
What are the employer’s rights under the ADA?
If the employer’s concerns are not alleviated by following the FMLA procedures, there is another option that may be available under the Americans with Disabilities Act (ADA”). An employer may require a medical examination if there is a “reasonable belief” that the employee’s ability to perform essential job functions will be impaired or if the employee poses a direct threat to health or safety. The medical examination must be job-related and be consistent with business necessity.
In order to go this route, the employer must have “reason to doubt” the employee’s ability to perform the essential job functions. For example, there could be conflicting opinions received from the employee’s doctor or other evidence casting doubt on the employee’s ability to perform his or her job. Arguably, the Facebook post in the above example may suffice. A medical exam under the ADA does not have to be performed by the employee’s own doctor. The Company can pay its own healthcare provider to conduct the evaluation.
Employers should always tread carefully when seeking medical information. Medical exams and certifications must be narrowly tailored to address only the particular injury or illness from which the employee suffers. In other words, employers need to be careful not to mandate a general physical or a certificate of “good health.” Many employers get into trouble by trying to obtain additional health information. Finally, employers must always consider whether they are consistently applying these requirements to all similarly-situated employees to avoid any claim of disparate treatment.