When it comes to FMLA medical certification, my clients have many complaints.
One beef, in particular, is vague medical information they receive on a certification completed by the employee’s primary care physician. This is particularly true where the employee’s mental health is at issue. Employers (rightfully) complain that they deserve medical information from a specialist who is far more knowledgeable about the employee’s specific medical condition. As a result, my clients ask me whether they can require that the employee return initial certification or fitness-for-duty certification from a specialist.
I have been a bit reluctant to give the green light. Until now.
Take the case of Erica, a community outreach worker for the City of Milford. Erica had a knack for taking a leave of absence after she was disciplined or coached about her performance. Coincidence, I’m sure. On one such occasion, Erica requested a continuous leave of absence due to “severe anxiety.” In support of her leave, Erica submitted certification from her primary care doctor, who indicated that Erica was “under care of psychiatrist and therapist.”
Given the psychiatric nature of the problems that led to Erica’s leave of absence, the City’s HR Director required that Erica submit a “new” certification from her “treating psychiatrist.” Even more, she told Erica that she also would be required to provide fitness-for-duty certification from the same psychiatrist to confirm that she is able to perform the duties of her job at the conclusion of her leave.
Erica complied. After she submitted certification from her psychiatrist, her leave was approved.
Upon return to work, Erica provided certification again from her psychiatrist stating that she was “cleared medically to return to work.” Concerned about whether she could safely perform her duties at work, the HR Director required that Erica provide additional details about her ability to return to work. Specifically, the City wanted Erica’s psychiatrist to review Erica’s job description and confirm that she could safely perform the job.
Notably, the City delayed Erica’s return to work for six days until she provided the additional information. Erica provided another letter from her psychiatrist explaining his observations of her condition and stating the following: “Having reviewed [Erica’s] job description and observed her demeanor in-person, it is my conclusion that [Erica] is medically cleared to return to work.”
In a twist to thicken the plot, Erica then resigned. And as former employees are inclined to do, she sued. Among other things, she claimed that the City interfered with her FMLA rights when it required her to provide a second initial certification and when it delayed her return to work and ordered her to provide additional information from psychiatrist about her ability to return to work.
The Court soundly rejected Erica’s argument that the employer violated the FMLA when it required initial certification from her psychiatrist. Noting that Erica’s primary care doctor “repeatedly” referenced her treating psychiatrist when describing the basis for FMLA leave, the court determined that it was perfectly acceptable for the employer to request that the treating psychiatrist cure the ambiguities in the medical certification.
The court also found compelling the fact that the City clearly laid out for Erica the specific actions needed to cure the deficiencies in her original certification and gave Erica ample time to obtain the information.
The court also found that the employer had the right to delay Erica’s return for six days and require a more specific fitness-for-duty certification. Score!
When it comes to fitness-for-duty certifications, employers can require that the health care provider address two important criteria in the documentation:
- Confirm that the employee is able to resume work
- Specifically address the employee’s ability to perform the essential functions of the employee’s job
Therefore, a generic note even from the psychiatrist stating that the employee can return to work is not good enough. As the court also affirmed here, the employer has the right to insist that the health care provider review the job description for the position and confirm that the employee can perform those job duties. And, according to this court, the employer can require that this information be provided by the psychiatrist, as opposed to a primary care doctor. Bento v. City of Milford
Insights for Employers
This is good stuff, isn’t it?
A couple thoughts before we break open the bubbly:
- Does this court decision give employers carte blanche to require that two doctors certify an FMLA leave? Not quite. However, it does give us fairly clear guidance in situations where the primary care physician completing the certification appears to have had little to no role in the actual treatment of the employee’s underlying medical condition. This is particularly helpful where we are dealing with a mental health condition. Therefore, in those instances where it is clear that the primary care doc is relying on (and refers to) treatment provided by a specialist, this court decision tells us that we can safely require that the employee obtain medical certification from the specialist treating the employee before we can grant or deny the FMLA leave request. This is good stuff!
- This decision also is helpful in delaying a return to work where the employee provides a simple prescription pad note clearing her return to work. As this court decision makes clear, we can require that the health care provider confirm that the employee can return to work and that (upon review of the job description) the employee can safely perform the duties of her position.
- Keep in mind, however, that the FMLA regulations have very specific requirements for seeking fitness-for-duty (FFD) certification upon return to work:
- The employer must provide written notice to an employee of the need to provide a FFD certification prior to returning to work.
- This notice must be provided with the FMLA designation notice and include the essential job functions to be reviewed by the doctor.
- The employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same medical condition) who take leave for such a condition to provide FFD certification.
- Some employers have genuine concerns about whether the employee is actually fit to return to work, even after receiving an otherwise compliant FFD certification. Can employers require that an independent medical examination be completed before the return to work? Maybe. But you have to follow very specific procedures, which I previously outlined for employers here.
- Where you have any concerns about whether you can push back on initial or FFD certification, be sure to discuss first with your employment counsel. Although this court decision is a welcome confirmation for employers, we’re still venturing into unchartered territory here, as I don’t know of another court addressing these issues as specifically as this one has done. So, we must tread carefully – and in a compliant manner.
Sounds like a topic I will need to discuss at my upcoming webinar on using medical certification to combat FMLA abuse. Have you signed up for it yet? Click here!
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