Employment Law Blog

News, trends and analysis in employment law and HR

Jul 09, 2013

Employee’s FMLA fitness-for-duty note can’t be refused

Q&ADisabilityLeave Laws 

Q: An employee who has been on FMLA leave for his own serious health condition—a very serious heart condition—has given us a note from his doctor that says he’s fit to return to duty, but we have grave concerns about whether he can work safely. Can we require him to get a second opinion from our company doctor before we return him to his job?

A: No. The FMLA rules make it clear that the employee must be reinstated to his job without delay once he provides a note from his health care provider stating that he’s able to return to work. The FMLA allows you to contact the provider to seek clarification about the employee’s ability to return, but you cannot require a second opinion. For example, if you were not sure that the health care provider understood the employee’s working conditions and job duties when he or she completed the fitness-for-duty evaluation, then someone in HR (but not the employee’s immediate supervisor) could contact the provider to ask for clarification, but you couldn’t delay the employee’s return to work during this process. Another alternative is to reinstate the employee to the job, and then monitor the employee’s performance for signs that he’s having trouble performing his job due to his medical condition. If his supervisor observes him having trouble performing the essential functions of his job, and reasonably believes the employee’s difficulties might be due to his medical condition, then the Americans with Disabilities Act permits you to remove the employee from the job while you obtain another fitness-for-duty examination, which may be from the company’s health care provider. Be aware that state laws may also affect your decision (for example, state family leave laws may prohibit you from making direct contact with the employee’s health care provider). In a situation like this, contact your Vigilant staff representative for help evaluating your legal obligations and how best to proceed.

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