It seems that what Yahoo CEO Marissa Mayer taketh, she giveth back. Or something like that.
As you will recall, Mayer made waves several months back when she banned all Yahoo employees from working from home, a rather controversial move seen by some as unfriendly to working parents. Now, in an interesting twist, Yahoo has announced a sweetened parental leave policy that will provide 16 weeks of paid maternity leave for moms and eight weeks of paid paternity leave for dads (not to mention $500 in spending money to help after baby comes home).
As all things in life naturally find their way back to the glorious subject of FMLA [how does my poor family live with me, right!?!], Yahoo/Mayer’s evolving story lines lead me to ponder a number of FMLA family bonding leave issues. Two in particular stand out simply because several of my clients have raised them recently: 1) Can an employer like Yahoo require medical certification supporting a mother’s (or father’s) request for bonding time after childbirth?; and 2) Before mom returns to work from maternity leave, can an employer require her to submit a fitness for duty certification? Let’s discuss…
Can an Employer Require Mom or Dad to Provide Medical Certification to Support Bonding Leave?
Keep in mind the purpose of medical certification: to determine whether the employee or a family member has a serious health condition that requires leave from work. Thus, it’s not surprising that the U.S. Department of Labor very clearly warns employers in its FMLA guidance (pdf) that an “employer may not request a certification for leave to bond with a newborn child or a child placed for adoption or foster care.”
But can an employer require some sort of documentation from mom or dad confirming the need for bonding leave? Yes, indeed! In the Rights & Responsibilities Notice (pdf) provided to the employee at the time they request bonding leave, the employer can (and should): 1) check the Box in Part B indicating that “other information [is] needed;” and 2) inform the employee that documentation from the health care provider is necessary to confirm the pregnancy and due date of the child (to support the need for bonding leave). In the case of adoption or foster care, similar documentation from the adoption or foster agency involved would suffice.
Can an Employer Require Mom to Submit Fitness for Duty Certification when Returning from Maternity Leave?
If mom simply is returning from bonding leave, the employer cannot require a fitness for duty certification as a condition of her return to work. Again, there is no serious health condition at issue, so there is nothing to test through certification. (Keep in mind, however: if mom also suffers from a serious health condition during bonding leave, the employer may require fitness for duty certification in this instance.)
There is one caveat to this general rule. At times (and Marissa Mayer is a good example), a mom chooses to return to work before the entire 12 weeks of FMLA bonding time is exhausted. In this instance, can an employer obtain documentation that mom is fit to return to work? To answer the question, I would adopt the generally recognized period of recovery from childbirth — six weeks for a normal childbirth and eight weeks for a Cesarean section. Therefore, if mom wants to return before Week six or eight (depending on the circumstance), an employer arguably can require documentation from her physician confirming that she is able to perform the essential functions of her job.
That said, I would not seek this documentation under the guise of an FMLA fitness for duty certification, since there still seems to be no support in the FMLA or its regulations for such a condition upon return to work. (Thus, you may want to communicate such a requirement separate an apart from your FMLA communications with the employee.)
However, if it’s after the recovery period, I am hard pressed to come up with any (legal) reasoning for insisting on fitness for duty documentation. So, don’t do it!