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Aug 28, 2014

By Eric B. Meyer

Under the Family and Medical Leave Act, an eligible employee has the right to take up to 12 work weeks of covered leave for, among other things, the employee’s own serious health condition.

The FMLA prohibits an employer from interfering with an employee’s FMLA rights. This includes the right to return to work from leave to the employee’s prior position (or an equivalent one).

Although, an employee may not be required to take more FMLA leave than necessary, when the employer informs the employee that she is eligible to take leave, the employer can insist that the employee certify, as a condition of returning to work, that the employee can perform all essential job functions. The way this is done is by providing the employee with a list of essential job functions.

Why a list of essential job function is so important

In Budhun v. Reading Hospital Medical Center, Ms. Budhun, a credentialing assistant (60% of her job was typing), took FMLA leave after breaking a bone in her hand. To help treat the injury, Ms. Budhun’s doctor taped the pinky, ring, and middle fingers on her right hand together to stabilize her pinky finger.

Ms. Budhun told her doctor that she felt she could type with the five fingers on her left hand, and her thumb and index finger on her right hand. So, the doctor prepared a note, which read “No restrictions in splint.”

After providing the doctor’s note to Reading Hospital, Ms. Budhun attempted to return to work. However, the Reading Hospital would not permit Ms. Budhun to return, fearing that she could not perform her job at the same pre-injury level, without full use of all of her digits.

So, Ms. Budhun sued the hospital for violating the FMLA.

Following a grant of summary judgment in favor of Reading Hospital, Ms. Budhun appealed. And the Third U.S. Circuit Court of Appeals based in Philadelphia reversed, finding that Ms. Budhun had made a proper request to return to work, only to be rebuffed:

Her ‘fitness-for-duty’ certification clearly stated that she could return to work with “no restrictions.” … 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. It is undisputed that Reading did not provide Budhun a list of essential functions for her to present to Dr. Battista. Because Reading did not provide Budhun with such a list, Dr. Battista’s fitness-for-duty certification was based only on the description of the job that Budhun would have supplied him. Budhun stated that Dr. Battista specifically asked her if she felt able to type, and she responded that she thought she could.”

The court further underscored that, should an employer require clarification about a fitness-for-duty certification, the employer cannot delay the employee’s return while attempting to contact the employee’s physician.

Best practices employers should remember

  • Know what the essential job functions of each job are. Generally, the job description should reflect this. But, sometimes, job descriptions, well, you know. So, check with your managers/supervisor to find out what your employees do each day. And make sure the job description accurately reflects this. (And if the tasks your employees are performing are inconsistent with your expectations, consider changing managers/supervisors).
  • Provide the employee with a list of essential job functions that the employee’s physician must consider as part of the fitness-for-duty certification when you provide an employee with notice that she is eligible for FMLA. Otherwise, the physician need not consider them.
  • Consider the ADA, too. The failure 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 the position. And the FMLA doesn’t require an employer to provide a reasonable accommodation to perform an essential job function. But the Americans with Disabilities Act does. And since many FMLA “serious health conditions” also qualifies as ADA disabilities, you need to be thinking about the ADA when someone seeks to return to work from FMLA leave.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.