Monday, December 27, 2010
It is common for many employers to require a Return to Work Fitness Report prior to an employee returning to work after a FMLA leave of absence. What constitutes a “significant” amount of time, even for FMLA, is often dependent upon the industry and/or job. The reasoning behind requiring such reports is simple. The employer needs to certify that the employee is physically, emotionally, and psychologically capable of performing work and that the employee is not impaired by either legal or illegal substances. The FLMA Return to Work Fitness Report is generally performed by the employee’s personal health care provider; however, the employer may require the use of their own physical.
The basis for an employer’s ability to require a FMLA Return to Work Fitness Report is found in 29 U.S.C. section 2614(a) (4) and 29 C.F.R. section 825.310(a):
“As a condition of restoration under paragraph (1) for an employee who has taken leave under section 2612 (a)(1)(D) of this title, the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this paragraph shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of such employees.”
“Employers may have a uniformly applied policy of requiring similarly situated employees who take leave for their own serious health condition to submit certification of their ability to return to work. Such certification need only be a simple statement of the employee's ability to work. The employer's health care provider may contact the employee's health care provider, with the employee's permission, to clarify the return-to-work certification but may not request additional information and may not delay the employee's return to work. Id. The employee bears the cost of providing the return to work certification. Where state or local law or the terms of a collective bargaining agreement govern an employee's return to work, those provisions shall apply. Employers are required to provide employees with advance notice of the requirement to provide a return-to-work certification. Where an employee has been given appropriate notice of the requirement to provide a return-to-work certification, the employee's return from leave may be delayed until the certification is provided. Return-to-work certifications may not be required for employees taking intermittent leave. Employers may not require a second opinion on return-to-work certifications.”
What is clear from both 29 U.S.C. section 2614(a)(4) and 29 C.F.R. section 825.310(a) is that any FMLA Return to Work Fitness Report must meet the following conditions:
1. A uniformly applied practice or policy:
If the employer requires it for one, it must require it for all employees who are “Similarly situated employees”. This could be all for equipment operators but not for office administrative staff.
2. Certification from the health care provider:
The “health care provider” must be a duly licensed health care provider and must be the personal health care provider of the employee.
3. Shall [not] supersede a valid State or local law or a collective bargaining agreement:
A state or local law or a valid collective bargaining agreement would prevail over either 2614(a)(4) or 29 C.F.R. section 825.310(a)
4. Similarly situated employees:
Similarly situated employees and an uniformly applied practice or policy. This could be all equipment operators for leaves greater than some predetermined period of time, e.g., two weeks.
5. Certification need only be a simple statement:
A FMLA Return to Work Fitness Report is valid as long as it clearly states the employee is able to perform the work to which they are assigned. Copies of medical records, laboratory tests, X-Rays, and other medical information are not required.
6. Employer’s health care provider may contact the employee's health care provider:
Provided the contact is for clarification of some ambiguous comment or reference by the personal health care provider of the employee.
7. Employers are required to provide employees with advance notice:
If the employer has a practice or policy of requiring a FMLA Return to Work Fitness Report, the employer must notify the employee in advance. This could include the use of an employee handbook or a valid collective bargaining agreement as means of “advanced” notification.
8. Employee’s return from leave may be delayed until the certification is provided:
If the employee fails to provide a valid FMLA Return to Work Fitness Report, the employer’s only action is to delay the return to work until such report is provided.
9. Certifications may not be required for employees taking intermittent leave:
Employees who take intermittent leave are not required to provide a FMLA Return to Work Fitness Report.
10. May not require a second opinion on return-to-work certifications:
Provided the employee’s “health care provider” is a duly licensed health care provider and the personal health care provider of the employee, no second opinionon may be required.
As with all situations dealing with federal, state or local laws, rules, and regulations; professional certified experts should be retained before making or changing an organizations policies and practices.
If the employer requires it for one, it must require it for all employees who are “Similarly situated employees”. This could be all for equipment operators but not for office administrative staff.
2. Certification from the health care provider:
The “health care provider” must be a duly licensed health care provider and must be the personal health care provider of the employee.
3. Shall [not] supersede a valid State or local law or a collective bargaining agreement:
A state or local law or a valid collective bargaining agreement would prevail over either 2614(a)(4) or 29 C.F.R. section 825.310(a)
4. Similarly situated employees:
Similarly situated employees and an uniformly applied practice or policy. This could be all equipment operators for leaves greater than some predetermined period of time, e.g., two weeks.
5. Certification need only be a simple statement:
A FMLA Return to Work Fitness Report is valid as long as it clearly states the employee is able to perform the work to which they are assigned. Copies of medical records, laboratory tests, X-Rays, and other medical information are not required.
6. Employer’s health care provider may contact the employee's health care provider:
Provided the contact is for clarification of some ambiguous comment or reference by the personal health care provider of the employee.
7. Employers are required to provide employees with advance notice:
If the employer has a practice or policy of requiring a FMLA Return to Work Fitness Report, the employer must notify the employee in advance. This could include the use of an employee handbook or a valid collective bargaining agreement as means of “advanced” notification.
8. Employee’s return from leave may be delayed until the certification is provided:
If the employee fails to provide a valid FMLA Return to Work Fitness Report, the employer’s only action is to delay the return to work until such report is provided.
9. Certifications may not be required for employees taking intermittent leave:
Employees who take intermittent leave are not required to provide a FMLA Return to Work Fitness Report.
10. May not require a second opinion on return-to-work certifications:
Provided the employee’s “health care provider” is a duly licensed health care provider and the personal health care provider of the employee, no second opinionon may be required.
As with all situations dealing with federal, state or local laws, rules, and regulations; professional certified experts should be retained before making or changing an organizations policies and practices.
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