Q:  An employee who recently returned from FMLA leave claims that a portion of his leave of absence should not count against his FMLA entitlement because he responded to a number of work-related e-mails and telephone calls while he was out.  Can we still count this time as FMLA leave?

A:  I have fielded this question from several employers lately, so I figured I would tackle it head on.  In this situation, what an employer is worried about is FMLA "interference" -- the idea that the employer is denying the employee FMLA benefits to which he otherwise was entitled. 

In a nutshell, an employee is unlikely to establish an FMLA interference claim simply because he responds to some e-mail and a few phone calls during leave.

Generally, courts find that fielding occasional calls and e-mails that relate to your job while on leave is a "professional courtesy" that does not interfere with FMLA leave.  Therefore, a few  work-related communications likely will not constitute interference with an employee's FMLA rights.  As one federal court in New York put it, when an employee is passing on "institutional knowledge" or providing closure on open assignments, employers do not violate the FMLA. 

What about the employee who is answering e-mails and calls without the boss' knowledge?  Generally good news for employers here, too.  Several courts have refused to find FMLA interference where an employee performed work while on leave without first informing his supervisor that he did not want to work or was too fatigued to do so.  Soehner v. Time Warner Cable, Inc.

Insights for Employers

1.  There are no hard and fast rules about contact between employee and employer during FMLA leave.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions (where they can find the company business plans, for example) or to wrap up a job the absent employee was working on.  Also, as evidenced in the Soehner case above, it is unlikely to be an FMLA violation where the employee is working behind the boss's back.

Tread carefully here, though.  If your employee is on FMLA leave and you learn that he or she is performing work (including regularly answering work-related e-mails and/or calls), the best course to reduce the risk of any FMLA (or FLSA) liability is to put an end to the work. 

2.  Watch out for possible FLSA issues where an employee performs work while on leave.  For best practices on the wage and hour side, see my colleague Bill Pokorny's post on our Wage and Hour blog here.

Q: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

A.  It depends, particularly after a federal appellate court handed down a ruling on this very issue last week.

The underlying story is straightforward: On October 5, 2008, Kathryn Pereda began working for Brookdale, which operates senior living facilities in Florida.  In June 2009, Pereda informed her employer that she was pregnant and would need FMLA leave after the birth of her child in November 2009.  However, in September 2009, about 11 months after her hire, Brookdale terminated Pereda's employment.

Pereda thereafter filed suit, claiming that the employer violated the Family and Medical Leave Act when it: 1) denied her FMLA leave (interference); and 2) terminated her for exercising her right to take FMLA leave (retaliation). 

The Court grappled with whether an employee who is not yet eligible for leave (because she had not worked for Brookdale for the requisite 12 months) could advance an FMLA interference claim.  For the Court, the answer was quite clear: Yes, she can.  In answering the question, the Court first looked to the regulation regarding eligibility: 

"The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start." 29 C.F.R. § 825.110(d).  

So, the answer is easy enough: when assessing an employee's eligibility under the FMLA, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin.  If an employer terminates the employee “in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible,” the employee could advance an FMLA interference claim.  Pereda v. Brookdale Senior Living Communities, Inc. 

Insights for Employers

There are several takeaways for employers on this issue: 

1. Keep in mind that the FMLA requires a 30-day notice for foreseeable leave.  This is particularly true for the birth of a child.  An employee who reports a future need for FMLA leave (even though they are not yet eligible) likely will be protected by the FMLA if the employee would be eligible by the time the leave is to begin.
2. A gentle reminder -- don't treat your employee differently after the leave request has been made.  According to Pereda above, she claims to have been harassed, disciplined for attending prenatal appointments (an FMLA no-no!), and inappropriately placed on a performance improvement plan.  Of course, an employer can and should insist that their employees meet legitimate performance expectations, but retaliating against the employee after she requests leave not only violates the FMLA, it results in a dejected employee who will have no desire to work for you again.
3. Note: If an employer grants leave before the employee becomes eligible under the FMLA, any leave taken in the first year cannot be counted against the employee's FMLA allotment.  See my prior post on this subject.
4. Eric Meyer of The Employer Handbook points out several other lessons from Pereda case that are worth reviewing.

Why did the DOL's FMLA forms expire?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms to the Office of Management and Budget (OMB) for approval, so that OMB can ensure the information request and the time spent responding to the request is minimized.  [Insert your own sarcastic comment about the efficiency of the federal government here.]  OMB approved the DOL's FMLA forms in late 2008 around the time the new FMLA regulations took effect.  As a result, the forms were approved for three years, which is the maximum time period allowed.  Upon expiration of the forms (in this case, on December 31, 2011), the DOL may continue to use the forms while it seeks renewal of OMB's approval, which it has done in this instance. 

Even if employers can continue to use the DOL's FMLA forms, should they use them?

Ahem, this really is the more important question.  In a nutshell, we encourage employers to proceed with caution.  At a minimum, keep the following in mind and make appropriate changes in 2012 and beyond:

1. Add the GINA safe harbor provision to your FMLA notices and forms.  Under the Genetic Information Nondiscrimination Act (GINA), employers requesting medical certifcation or fitness for duty certification must instruct health care providers not to collect or provide any genetic information.  Therefore, employers should strongly consider adding language to their FMLA medical certification forms for an employee’s serious health condition and when an employee is seeking to care for a family member with a serious health condition.  And to avoid any further procrastination, I am even giving you the new language you should use.  Here it is:
   
   Employee's Serious Health Condition
   
   The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
   
   Family Member’s Serious Health Condition
   
   The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Please provide medical history information regarding your patient only to the extent necessary to fully respond to all relevant items below.
   
   Note:  This language should be added to the FMLA medical certification form or other written documentation that accompanies the form, and should be used when a fitness for duty certification is requested.  I also recommend that employers also use the above language in any correspondence to a health care provider where the employer is requesting medical information (e.g., to support a request for an ADA accommodation).
   
   
2. Consider adapting the DOL's "model" FMLA forms to suit your needs.  As my colleague Bill Pokorny shared in a prior post, the DOL's "model" FMLA forms fall short in several respects.  To name a few: 1) the medical certification forms do not request all of the information that employers may require, such as information regarding an employee's work restrictions; 2) the model designation notice does not include language addressing the rules for fitness-for-duty certifications for intermittent or reduced work schedule leave, which will be crucial to combat FMLA misuse and abuse; and 3) because the DOL's forms are designed as a "one-size-fits-all" solution, they include extraneous information that will not apply to all or even most employers, and do not reflect individual employers' policies and procedures.  Additionally, the forms do not account for the changes to exigency leave, which now is possible as a result of a family member's call to duty in a foreign country (as opposed to the confusing "contingency operation" language originally used). 
   
   However, changing the language of the DOL's model FMLA forms should be done carefully.  At a minimum, we encourage you to update your notices and forms regarding the change to exigency leave above.  Either way, we strongly encourage employers to work closely with their employment attorneys to develop forms, policies and procedures that fully take advantage of their rights under the FMLA regulations while also fully complying with the rules.

Here's yet another resource to help you administer FMLA leave around the holidays -- a short podcast on the subject.  Last week, in her weekly podcast, Stephanie Thomas of The Proactive Employer bombarded me with a ton of excellent questions about how employers should calculate FMLA leave, particularly around the holidays.  Listen to the podcast here.

If you've finished your holiday shopping and can't get enough of the topic, you also can access a previous FMLA podcast on the subject with my colleague, Bill Pokorny: "Bah, Humbug! What Do I Do When My Employees Are Home for the Holidays?"

Our best wishes for a fabulous holiday season and a peaceful New Year!

A.  First of all, good for you for offering this benefit to your employees.  However, the Department of Labor is not going to give you a big pat on the back.  In the FMLA regulations, it is clear (if it wasn't before) that an employer cannot credit leave given in the first year of employment against an employee's FMLA allotment once he or she becomes eligible for FMLA leave.  This is true even if the employee otherwise suffered from a serious health condition that would have been covered by the FMLA had he or she otherwise been eligible.  This situation is covered, in part, by the following regulation:

The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.  An employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be “FMLA leave.”  29 CFR 825.110(d) (emphasis added)

As the regulation makes clear, a leave of absence can only be designated as FMLA leave after the employee meets eligibility requirements.  This situation is covered even more explicitly in the preamble to the FMLA regulations, which I provide here.   In the preamble, the DOL states:

...any leave that employers voluntarily provide before an employee attains eligibility under the FMLA is not FMLA leave. Therefore, the FMLA protections do not apply to such leave, and employers may apply their normal policies to such leave. Employers may not, however, count any such non-FMLA leave toward the employee’s 12-week FMLA entitlement.

Q. We employ an FLSA-exempt employee who has been certified for intermittent FMLA leave for migraine headaches.  He averages two to three intermittent absences per month.  Normally, I would calculate the employee's total FMLA allotment as 480 FMLA hours (12 weeks x 40 hrs/wk), but he claims he should be entitled to 600 FMLA hours because he averages 50 hours worked per week.  Is he correct?  Help!?! 

A.  One of the (many) headaches of managing intermittent FMLA leave is keeping track of leave in increments smaller than one work week.  For non-exempt employees, employers often calculate leave entitlement as 480 hours per FMLA year (i.e., 12 weeks x 40 hrs/wk).  However, the FMLA regulations urge caution when making these calculations.  

When dealing with a reduced schedule or intermittent leave under the FMLA, an employer first should calculate how many hours of leave an employee is entitled to.  You make this calculation according to the employee's regular workweek.  For example, an employee who regularly works a five-day work week and eight hours a day, is entitled to 480 hours of leave: 12 weeks x 40 hrs/wk.  Similarly, an employee who works a four-day week and eight hours each day is entitled to 384 hours of leave: 12 weeks x 32 hrs/wk.

Fluctuating work week: If an employee's schedule varies from week to week that an employer cannot determine with any certainty how many hours the employee would otherwise have worked, the employer should average of the hours scheduled over the 12 months prior to the beginning of the leave period (including the hours for which the employee took any type of leave) to calculate the employee's leave entitlement.

However, for an FLSA-exempt employee, employers typically have not recorded any work hours for the employee.  Thus, determing the actual intermittent FMLA allotment is particularly difficult, since it is not unusual for exempt employees to work more than 40 hours in a work week.  In these instances, the burden is on the employer to disprove the employee's record of the number of hours he or she worked. 

Insights for Employers

How can an employer meet this burden?  For starters, we strongly recommend that employers utilize a standard leave of absence form that employees complete in conjunction with any absence.  On the form, employers should require their exempt employees to specify the number of hours they have worked over the preceding 12-month period. 

If you have concerns about the hours represented by the employee, discuss this with your employee.  Perhaps you can cite to attendance patterns or time records to show that their calculation is not accurate.  At a minimum, it encourages an open dialogue at the beginning of the FMLA leave so that it minimizes any surprises (or claims of unfair treatment) further down the line. 

One additional note:  If an employer has made a permanent or long-term change in the employee's schedule (for reasons other than FMLA leave and before the notice of need for FMLA leave), the employer can use the hours worked under the new schedule to make the leave entitlement calculation.

A.  When determining whether an employee has worked the requisite 1,250 hours in the previous 12 months to be eligible for leave under the Family and Medical Leave Act, an employer must account for hours actually worked by the employee within the meaning of the Fair Labor Standards Act (FLSA). 29 CFR § 825.110(c).  The issue here is whether an employer must treat the back pay award as the equivalent of "hours worked."  

This issue even has the courts conflicted.  In Plumley v. Southern Container, Inc., the First Circuit Court of Appeals ruled that several months of back pay awarded to an employee who was reinstated after successfully grieving his termination does not count towards the 1,250-hour requirement.  The court found that hours worked:

"include only those hours actually worked in the service and at the gain of the employer,” and not hours for which a wrongfully-discharged employee was compensated in the form of back pay pursuant to an arbitral award.

However, the Sixth Circuit Court of Appeals in Ricco v. Potter (pdf) held precisely the opposite.  Where an employee has been wrongfully terminated and is reinstated with back pay, the court held that an employer is obligated to to treat the period of time covered by the back pay as "hours worked" for purposes of FMLA eligibility.  In short, the court reasoned that an employee should be credited for the hours that he wanted to work but was unlawfully prevented from doing so.  Thus, under Ricco, if the back pay period provides the hours necessary to meet the 1,250-hour requirement, and the employee is otherwise eligible, he is entitled to FMLA leave. 

From an anecdotal standpoint, I find that most employers tend to follow the Ricco holding, since the risk of following Plumley clearly could be more costly in light of the split in the appellate courts.  Interestingly, the courts have not addressed grievances that are settled and which result in some amount of back pay awarded to the employee.  Here, it seems as though the employer has a much stronger argument that the time covered by the back pay does not count as "hours worked," since there is no finding of wrongful termination against the employer, and the parties otherwise have compromised their positions to achieve resolution.  In this scenario, my sense is that a court would be far less likely to count this period of time toward an employee's 1,250 hours worked.

Q. We have requested a medical certification from an employee who is seeking FMLA leave. We have our own certification form, and gave the employee a copy. The employee came back with a form letter from the doctor's office stating that they charge a fee for filling out FMLA certification forms, and a note from the doctor stating that the employee was injured and needed FMLA leave. Do we have to accept the note in lieu of our form?

A. Generally speaking, it doesn't matter whether a medical certification is written on your preferred form or on the back of a bar napkin. So long as the document is signed by a health care provider, and is "complete" and "sufficient" in the sense that it provides the employer with all of the information needed to determine if the leave is covered by the FMLA, then the certification should be accepted. But that does not mean that you should unquestioningly accept a "doctor's note" in place of a complete FMLA certification. 

However, a more detailed note or letter from the doctor might suffice, even if it is not on your preferred form. Exactly how much information is needed will depend upon the specific circumstances. Again, if you need more information to determine whether the FMLA applies, the appropriate course is to inform the employee in writing of the specific information needed to make the certification complete and sufficient. 

But what if the certification actually was written on the back of a bar napkin? Given the size of most cocktail napkins, it is unlikely that the certification would be complete or sufficient. (That would probably require at least a dinner napkin.) Even if it were, we would strongly recommend contacting the health care provider to authenticate the certification, and perhaps seeking a second opinion. 

A. Unless there is more to the story, probably not. Under the FMLA, a "serious health condition" means an injury, illness, impairment, or physical or mental condition that involves inpatient care or "continuing treatment" by a health care provider.

One of the ways in which a condition can meet the "continuing treatment" requirement is if the condition involves a period of incapacity of more than three full calendar days, and treatment by a health care provider two or more times within 30 days, or one time followed by a "regime of continuing treatment," which can include a course of prescription medicine.

In the scenario above, the employee appears to have been incapacitated for more than three days. She also appears to have received a course of prescription medication.  The question, therefore, is whether her call to the doctor constituted a "treatment." On this, the regulations are clear: "treatment by a health care provider means an in-person visit to a health care provider." 

Note that if the employee's absences were related to a chronic condition rather than a temporary illness like the flu, the employee might still be eligible for leave even though she did not visit the doctor in connection with this specific absence. 

A. This clearly is a grey area in the law at present. Very few courts have given us guidance as to whether travel time itself (to care for a family member with a serious health condition) qualifies as part of the FMLA leave allotment.  My quick take: If it's clear that the employee will be required to care for the family member beginning on Day X, then a court likely would find that the travel necessary to get to the destination by Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

Although not directly on point, take the recent case of Lane v. Pontiac Osteopathic Hospital.  In this case, the plaintiff was required to care for his mother, cook her meals and transport her to medical appointments.  However, the Court supported the employer's denial of FMLA leave when the plaintiff sought leave to clean up his mom's flooded basement.  Interestingly, the plaintiff claimed that his mother's condition would have worsened had he not taken time off to clean the basement. 

In finding for the employer, the court grappled with the concepts of "direct" vs. "indirect" care for a family member.  The court's ruling implies that where acts like "travel" to the family member are so intertwined or necessary to the need for leave itself, it should be considered part of the FMLA leave.  See also Tayag v. Lahey Clinic Hospital, Inc. (pdf), which upheld a denial of FMLA leave because a significant portion of a trip to meet with a "faith healer" actually was spent visiting socially with family.

A. Although the FMLA rules do not directly address this question, the general rule for counting FMLA leave during a holiday week would likely apply. So, if the employee is out on FMLA for the entire week, then yes, you can count the snow day against the employee's 12 weeks of FMLA leave. If the employee worked part of the week, then only the days the employee would actually have been expected to report to work should be counted as FMLA leave.

Note that this rule applies for closures of less than a week. If an employer's operations are shut down for one or more full weeks (for example, if your roof collapses under the snow and shuts down operations for a few weeks while repairs are made), any days the employee would not be expected to work should not be counted against the employee's FMLA leave entitlement. 

2011 surely will usher in new and unexpected FMLA developments.  In the meantime, what should employers do? Prepare.  As the calendar turns over to a new year, consider implementing the following to minimize FMLA liability and put yourself in the best position to administer the FMLA:

Q. I have an employee who is certified for FMLA leave. Our office is closed for Thanksgiving next Thursday and Friday. Do those days count as FMLA leave?

A. It depends upon whether the employee is absent for the entire week. 

Under the FMLA, leave is calculated in workweek increments. While employers have to deal with fractions of workweeks to keep track of shorter leaves and intermittent or reduced schedule leave, the workweek is always the basic unit. Consequently, "the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave." 

However, the situation is different if the employee is using FMLA leave in increments of less than a full workweek. In that case, the holiday days will not count against the employee's FMLA leave entitlement unless the employee was otherwise scheduled to work on those days. 

However, the situation is different if the employee is using FMLA leave in increments of less than a full workweek. In that case, the holiday days will not count against the employee's FMLA leave entitlement unless the employee was otherwise scheduled to work on those days. 

So, for an employee who is scheduled to work Monday through Wednesday, but has Thursday and Friday off for Thanksgiving, if the employee is off on FMLA leave Monday, Tuesday and Wednesday, that counts as one full week of FMLA leave. However, if the employee works on Monday and Tuesday, but goes out on FMLA beginning Wednesday, then only Wednesday counts against the employee's leave entitlement. But, because FMLA is measured by week, and this particular week has only three days, the one day of FMLA leave counts as 1/3 of a week, instead of 1/5th as it would in a typical 5-day workweek. 

For more on how FMLA leave works during the holidays, check out episode 7 of our FMLA Insights Podcast. Happy Thanksgiving everyone!

Q: I know t

A: Start on the day the employee receives the request for certification.

within 15 calendar days after the employer's request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification.

The rule is not clear, however, about whether the "employer's request" occurs on the date a written request for certification is sent to the employee, or the date it is received by the employee.

There is, however, a later provision in the rules that seems to clarify this question. The section addressing "failure to provide a certification" for "unforseeable leave" (29 C.F.R. § 825.313(b)) states, in part:

In the case of unforeseeable leave, an employer may deny FMLA coverage for the requested leave if the employee fails to provide a certification within 15 calendar days from receipt of the request for certification unless not practicable due to extenuating circumstances.

While this language specifically addresses only certifications for unforeseeable leave, taken in context it seems fair to assume that the DOL may read the 15-day requirement in a similar manner for both foreseeable leave and requests for recertification. Thus, the conservative approach is to calculate the 15-day deadline from the date the employee receives the request, not the date it is sent.

In light of this, we recommend the following approach whenever requesting a medical certification or recertification:

1. Make the request in writing, and be sure to keep a record of when and how it is sent or given to the employee. (For initial certifications, include the request along with the eligibility notice.)
2. Whatever method is used, get confirmation of delivery and keep this along with a file copy of the request. 
3. Count the 15 days from the date of delivery to the employee. 
4. In the written request, state that the certification is due within 15 days from receipt of the request. You can provide a specific date by stating "assuming that this request is received on [date], the certification will be due on [date]," or language to that effect.
5. If the employee fails to return the certification within the allotted time, strongly consider a follow-up request before denying leave. In the follow-up, inform the employee that he or she must explain why the certification was not provided within the initial 15-day period. 

A: If it was authorized by the health care provider who signed it, then yes. 

If the answer is yes, that is the end of the story, at least with respect to whether the certification is genuine. Under the rules, there is no requirement that a health care provider fill out the certification form him or herself, and no restriction on who may fill out the information with the health care provider's authorization. That means that a certification is valid even if filled out by the employee, so long as the doctor authorizes the employee to do so and signs the form. 

The rules do provide one other recourse in this situation: if you doubt the validity of the certification, consider asking for a second opinion. While the employer must pay for this evaluation, it gets to choose the healthcare provider, dramatically reducing the odds that the provider will sign off on a bogus certification at the employee's request. 

A: Post it along with your other required employment law posters, and publish it to all employees.

Posting

An FMLA-covered employer must post a copy of the General Notice in each location where it has any employees, even if there are no FMLA-eligible employees at that location. According to the rules, the notice must be posted "prominently where it can be readily seen by employees and applicants for employment." The text "must be large enough to be easily read" and "must contain fully legible text." Large-format copies of the poster are available from many vendors. However, employers must ensure that the text of the poster is fully legible and identical to that in the DOL's model notice. 

The poster may be posted electronically, so long as it "otherwise meets the requirements" of the rule. While posting on an open website would satisfy this requirement, posting on an intranet page not accessible to the public would arguably violate the requirement that the poster be available to applicants for employment as well as employees. 

(Why the poster must be available to applicants, who have no rights under the FMLA unless hired, and even then not until they have worked for at least 12 months, is not explained.)

Publication

If an employer has any FMLA-eligible employees, the General Notice must also be included in the employer's employee handbook, policy manual, or "other written guidance to employees concerning employee benefits or leave rights." If no such materials exist, a copy of the notice must be given to each new employee upon hiring. In either case, the notice may be given electronically. Thus, including the poster in an online employee policy manual is sufficient. As with the poster, while employers may use a different format, all of the information included in the DOL's model notice must be provided. To avoid any question of compliance, we recommend simply including the entire DOL form as an appendix in the employee handbook or manual. We also strongly advise employers to obtain an acknowledgement from each employee that he or she has received and reviewed the handbook or manual. 

Language

If a substantial portion of an employer's workforce speaks a language other than English, the notice must be provided in a language in which the employees are literate. The Spanish version of the poster is well-hidden on the DOL site, but is available in .pdf form. 

Penalties

Employers who fail to comply with the General Notice requirements under the rules may face civil monetary penalties. More importantly, failing to provide the notice can preclude an employer from using key defenses to an FMLA claim, such as the employee's failure to give proper notice of the need for FMLA leave. 

A: Yes, if the medical examination is "job-related and consistent with business necessity."

Under the FMLA regulations, an employer can have a "uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work." When such a policy or practice exists, the employer can delay restoration to employment following FMLA leave until an employee provides a fitness for duty certification (provided that the employee has been properly notified of the requirement in the designation notice).*

An employee who fails to provide a properly requested fitness for duty certification is not entitled to reinstatement under the FMLA. Conversely, once an employee provides a fitness for duty certification, he or she must generally be reinstated. But what if an employer has a genuine concern about an employee's ability to effectively perform the functions of his or her position notwithstanding a cursory note from the employee's doctor?

The FMLA rules expressly state that an employer may not delay an employee's return to work even to obtain clarification of a fitness for duty certification from the employee's doctor, and provide that "no second or third opinions may be required" under the rules. Thus, reading the rules, an employer could conclude that it must simply accept an employee's fitness for duty certification and reinstate the employee despite doubts about his or her ability to do the job.

Fortunately, that is not quite the case.

The ADA Still Applies

While the FMLA procedures do not create a separate mechanism to require a medical exam, they do provide that "requirements under the Americans with Disabilities Act (ADA), as amended, apply." Under the ADA, once an employee returns from FMLA leave, an employer may require a medical exam by its own health care provider and at its own expense if the exam is "job-related and consistent with business necessity." Thus, the FMLA rules state, "an employer may require a warehouse laborer, whose back impairment affects the ability to lift, to be examined by an orthopedist, but may not require this employee to submit to an HIV test where the test is not related to either the essential functions of his or her job or to his/her impairment." Likewise, "an attorney could not be required to submit to a medical examination or inquiry just because her leg had been amputated." The attorney might be required to see the employer's doctor, however, if he or she had a condition that seriously impaired judgment or critical thinking. Further, if an employee seeks an accommodation under the ADA, the employer may follow the procedures for requesting relevant information under the ADA. 

If a medical examination demonstrates that an employee is not able to perform the essential functions of his or her job (with or without reasonable accommodations), then the employee will not be entitled to reinstatement under the FMLA. Employers should proceed with caution whenever denying reinstatement on this basis, as the likelihood of an FMLA or disability discrimination claim is high. Reviewing the situation with an experienced employment attorney before acting may prevent much higher legal bills down the road.

But what if an employee goes in for a required medical examination, and the doctor finds that the employee can return to work? Obviously the employee should be reinstated as soon as possible after receipt of the doctor's report. Further, any additional time missed while waiting for the employee to see the company's doctor and for the doctor to report back should not be counted against the employee's FMLA leave entitlement. Employers should at least consider paying the employee for this time, although whether or not this is required may depend upon the employer's policies and any applicable collective bargaining agreement. 

As always, all of the above is subject to applicable state and local law and collective bargaining agreements. 

*Special rules apply to fitness for duty certifications for employees on intermittent leave.

A: Yes, if it otherwise meets the definition of a "serious health condition."

Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal diseases, etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. 

Reading this, one might assume that when an employee calls in sick with the flu, there's no need to worry about FMLA leave. That, unfortunately, is the wrong answer. 

The passage above is included in the FMLA rules as an example only. It in no way limits the definition of "serious health condition." If an FMLA-eligible employee has a bad case of the flu, is incapacitated for more than three full consecutive days, and goes to the doctor and receives a prescription for antibiotics, that employee is entitled to FMLA leave. The same is true regardless of the condition, whether it is a cold or sinus infection or ear ache. If the condition meets the criteria in the rules, then it is a "serious health condition" and the FMLA applies.

This conclusion leads to an obvious question: do employers need to go through the whole FMLA process every time an employee comes down with the sniffles? Not quite. For more on that, check out FMLA Insights Podcast No. 3.

Q: I have reason to believe that a former employee is going to file a complaint with the Department of Labor. What should I do?

A: Review your files and start getting ready to respond to requests for information. 

If the DOL does get involved, you can expect them to ask for the following:

• Relevant jurisdictional information. This may include your organization's proper legal name and ownership structure, the number of employees in your organization, the location and number of employees at each location, and total revenue or income figures.
• Copies of all relevant policies, including your FMLA, attendance, vacation, sick leave, and other leave of absence policies. 
• Copies of all notices provided to the employee regarding FMLA leave, and all correspondence, certifications, and other documents relating to FMLA leave over up to the last three years.
• The employee's time, attendance and payroll records for up to the preceding three years, including a record of all FMLA leave used by the employee.
• Records of premium payments for employee benefits.
• Other items in the employee's personnel file. 

Depending upon the nature of the allegations and the DOL's interest in the case, the investigation could expand beyond the complaining employee. In an extreme case, the DOL may conduct an audit of all FMLA leave requests over the last several years. If your files are in disarray, now is the time to get them in shape.

It would also be wise to advise the organization's employment counsel that a DOL investigation may be imminent. When the DOL does make contact, notify legal counsel immediately, and work with counsel to respond to any requests for information. 

A: Yes, but be sure you understand the procedure.

This does not, however, mean that employers should make a practice of asking for a second opinion every time an employee seeks FMLA leave. First, second opinions are always at the expense of the employer. This includes not only the cost of the evaluation itself, but also the employee's reasonable out of pocket travel expenses. Second, even if the second opinion conflicts with the initial certification, the issue will not be resolved. Rather, the employer must pay for yet a third opinion, which is final and binding. 

In light of the costs and the likelihood that a second or third opinion will, in most cases, simply confirm an employee's entitlement to FMLA leave, the second opinion option should generally be reserved for particularly questionable leave requests.