The story is for all you hunt and peck typists out there. But its message is a lesson for all employers when it comes to returning your employee from FMLA leave.
Vanessa worked for Reading Hospital as a credentialing assistant, a position that required her to be typing approximately 60 percent of the time. After breaking a bone in her hand (unrelated to her job, although it would have made for an interesting twist in this case), Vanessa took a leave of absence. She returned several weeks later wearing a splint on her hand. However, because the hospital believed she could not work “full duty” (because of the splint), it forced her back on leave until she could work full duty. Vanessa returned to her physician, who taped up her fingers and returned her to work, in large part because Vanessa told him she could perform the job.
Vanessa again returned to work with a doctor’s note, which stated, “No restrictions in splint.” When the hospital noticed her tape job, however, it again questioned her ability to work without restrictions. The hospital told her that “she needed to perform at the ‘same capacity’ as she did prior to going on leave” with “full use of all her digits in order to be considered full duty.” As a result, Vanessa took additional FMLA leave. She was out for an extended period of time, and upon expiration of 12 weeks of FMLA leave, the hospital filled her position with another employee.
Vanessa’s FMLA interference and retaliation suit followed.
In defending the lawsuit, the hospital argued that Vanessa’s FMLA claims should be dismissed because she could not perform an essential function of her job. In theory, the hospital had a good point — refusing to restore an employee to her position at the conclusion of her leave does not violate the FMLA if the employee remains unable to perform an essential function of her position.
Yet, a federal appellate court refused to dismiss Vanessa’s FMLA claims because she provided enough evidence to indicate that the hospital did not properly follow the FMLA when restoring her to her previous position.
Prior to permitting an employee to return to work, an employer may request that an employee provide [a fitness for duty] certification . . . as Reading required of [Vanessa] here. In it, an employee’s healthcare provider must merely certify that the employee is able to resume work . . . 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. 29 C.F.R. § 825.312(b). It is undisputed that Reading did not provide [Vanessa] a list of essential functions for her to present to [her doctor]. Because Reading did not provide [Vanessa] with such a list, the fitness-for-duty certification was based only on the description of the job that [Vanessa] would have supplied him.
Because the hospital did not provide Vanessa and her doctor a job description or list of essential duties, guess who got to decide what her duties were? Yep — Vanessa! So, when Vanessa’s doctor asked her if she felt able to type, and she responded “yes,” Vanessa’s opinion carried the day. Frightening, indeed! But the employer had no say in the matter because its return to work certification process was not compliant.
As the court noted, Vanessa’s fitness for duty certification clearly stated that she could return to work with “no restrictions.” If the employer had any concerns about the certification, it should have sought clarification with her health care provider (as long as the employee gives the employer permission to do so, which Vanessa did here). It did not do so here, choosing instead to overrule her doctor and deny her return her to work. That creates an FMLA problem, as the court pointed out here. Budhun v. Reading Hosp. & Medical Cntr.
Insights for Employers
A few takeaways here:
1. Ensure your fitness for duty certification process is compliant. The FMLA regulations contain very specific rules about how you return an employee to work, what notices you must provide, and the extent to which you can require certain medical information. Some key points to remember in this process: 1) you must notify your employee in the FMLA designation notice that you will require a FFD certification; 2) you should [read: must!] include an accurate job description or list of essential job duties; and 3) upon return of the FFD cert., you can seek clarification of the cert., but you cannot delay the employee’s return to work while you’re seeking clarification. (See my point directly above.)
2. When you don’t provide the health care provider with essential job functions, you potentially create problems for yourself, as the hospital learned here. When you fail to do so, the employee’s opinion and explanation of her job duties carry the day. Let’s not go there, so just provide these duties up front. Enough said.
3. Update job descriptions/essential job duties before you provide them to the health care provider. As my friend Eric Meyer points out in his post on this case, your descriptions are likely old and filthy (my words, not his), so work with your managers to update them so they reflect actual job functions. There was some debate in this case over Vanessa’s job duties. Clear, updated job descriptions avoids this ambiguity.
4. Don’t insist that an employee return to work fully or 100% healed. And even more, don’t put it in writing! The court did not dwell on this point, but employers must move away from the notion that an employee must remain on leave unless they are 100% healed or “without restrictions.” As I have highlighted in previous posts, the ADA requires employers to make an individualized assessment when deciding whether an employee can return. When employers enforce a ”100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process and, therefore, violated the ADA.
5. I’m not saying that you can’t question the employee’s return or the ability to obtain more medical information. In fact, in prior posts here and here, I outlined when you have the ability in certain situations to require a separate fitness for duty exam if you have an objectively reasonable basis for the examination independent of the FMLA leave itself. Use my guidance from these other posts to your advantage if you have concerns about an employee’s return to work.