Q: We have an employee returning from FMLA leave due to his own serious health condition. Although the employee has provided a doctor's note stating that he is released to work "full duty," we have serious concerns about his ability to do his job without risk of injury to himself or others. Can we require him to see a doctor selected by the company?

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

Fitness for Duty Certification Rules

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.