Why it matters: A new decision from the Third U.S. Circuit Court of Appeals demonstrates the importance of establishing a written job description for employees and ensuring a healthcare provider has a copy when considering an employee’s return to work after leave. An injured employee returned to her job with a note from her treating physician that she had “no restrictions.” The employer disagreed, particularly as the employee herself acknowledged that her typing was not as fast as normal. The employer sent her back on leave until she could work full duty. After she exhausted her Family and Medical Leave Act (FMLA) time and remained on leave, the employer filled her position with another employee. A federal district court judge granted summary judgment for the employer in the employee’s subsequent FMLA suit, but the federal appellate panel reversed. By failing to provide the employee’s treating physician with a job description for the employee, the doctor’s fitness-for-duty certification was properly based on the employee’s description of the position, the court said, and the employer did not have the right to overrule his judgment that the employee could work with “no restrictions.” The three-judge panel’s decision should serve as a warning to employers to review and draft a job description for employees and be ready to provide a written list of the job’s essential functions when FMLA leave is triggered – or face the consequences if an employee writes it him- or herself.

Detailed Discussion

In an incident unrelated to her job, Vanessa Budhun broke her fifth metacarpal. A credentialing assistant for Reading Hospital and Medical Center, Budhun’s job required preparing and mailing credentialing packs, processing and verifying credentialing information, and performing data entry. Budhun estimated that 60 percent of her job involved typing.

Budhun arrived at work with a splint on her right hand and a few hours later was provided with FMLA forms and went to see an orthopedic specialist. Roughly one week later, she returned to the same doctor, who taped the pinky, ring, and middle fingers on her right hand together and completed her FMLA leave certification form.

Budhun told the doctor that her job required typing and that she felt she could get the job done with her left hand and her thumb and index finger on her right. He signed a note that stated, “No restrictions in splint.” Budhun returned to work the next week. When questioned about her ability to work by her supervisor, she replied that she could “type slowly and write a little bit, but not as fast as I used to.” In an e-mail, her supervisor said that because Budhun was unable to perform at full duty, she needed to stay out of work until she was able to do so.

She then remained out of work for the remainder of her FMLA leave, although she remained in communication with her supervisor via e-mail and provided updates from her doctor. When Budhun did not return to work on the date her leave ended, the hospital offered her job to another employee.

In her subsequent complaint alleging interference with and retaliation based upon her FMLA leave, Budhun argued that when her supervisor told her she needed full use of all ten fingers before she could be reinstated, this action interfered with her right to be restored to her position. A federal district court disagreed and granted summary judgment to the hospital.

But on appeal, the Third Circuit reversed. The three-judge panel was quick to recognize that an employer may request that an employee provide a fitness for duty certification with a healthcare provider signing off that the employee is ready to return to work. The employer’s mistake in this case was that it failed to provide a list of essential functions for Budhun’s position so that the doctor could make an accurate assessment of her ability to do her job.

“An employer may require that … certification address the employee’s ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave,” the panel explained. “It is undisputed that Reading did not provide Budhun a list of essential functions for her to present to [her doctor]. Because Reading did not provide Budhun with such a list, [the doctor’s] fitness for duty certification was based only on the description of the job that Budhun would have supplied him.”

Instead of following the regulations – which also permit an employer to seek clarification of the certification – the hospital “seemingly overruled” the doctor’s conclusion by telling Budhun that if she was truly ready to return to work she would be able to use all her digits. “The record is sufficient to allow a reasonable jury to conclude that Budhun attempted to invoke her right to return to work, and that Reading interfered with it when it told Budhun that she could not,” the court wrote.

“Reading was free to provide Budhun with a list of the specific functions that were essential to her job so that [the doctor] could determine if Budhun could perform them, but it did not,” the panel said. “Instead, [her supervisor] unilaterally determined, over email, that Budhun could not perform an essential function because she had use of only seven fingers.”

Budhun’s admission that she could not type as quickly “does not mean that she could not perform this essential function,” the court added, in light of evidence she provided that no minimum words per minute requirement existed and other employees used the “hunt and peck” typing method. “Combined with [the doctor’s] note, Budhun has adduced enough evidence to allow a reasonable jury to conclude that she could, in fact, perform this essential function,” the court said.

The panel reversed summary judgment for the hospital and remanded the case to the district court.

To read the opinion in Budhun v. Reading Hospital and Medical Center, click here.