FMLA-113 — Fitness for duty certifications and return to work

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

September 11, 2000 FMLA-113

Dear
Name*,

Thank you for your letters seeking an opinion under the Family and Medical Leave Act of 1993 (FMLA)
regarding return-to-work procedures required by the
Name* for employees who are returning to work
following FMLA leave due to their own “serious health condition.”

In the first letter, you specifically ask whether the FMLA would permit the
Name* to require an employee
to submit to a “fitness-for-duty examination” before returning to work from FMLA leave where the
employee’s health care provider has certified the employee to be “fit to return to duty without restriction.”
You also asked that we assume for purposes of answering your inquiry that the handbook and manual
provisions relied on by the
Name* are part of a collective bargaining agreement (CBA) under the FMLA
regulations. In the second letter, you ask whether the
Name*, in those instances where it failed to
provide notice of any requirements for a medical certification as a condition of reinstatement, can delay
an FMLA leave taker’s return to work until such certification has been received.

As a condition of restoration, the FMLA permits an employer that has a uniformly- applied policy or
practice to require all employees, or only certain employees, who take leave for their own serious health
condition to provide a return-to-work certification from their health care provider. The certification need
only be a simple statement of an employee’s ability to work and must relate only to the particular health
condition that caused the employee’s need for FMLA leave. Under this provision, an employer may not
impose additional requirements. These fitness-for-duty certification provisions, however, do not
supersede any valid State or local law or CBA that governs return to work for such employees. (See 29
U.S.C. §2614(a)(4) and 29 C.F.R. §825.310.) How FMLA’s certification provisions interact with the terms
of a CBA that govern an employee’s reinstatement is specifically discussed in §825.310(b) of the
regulations. If the terms of the CBA, for instance, require a fitness-for-duty examination in addition to a
return-to-work certification, then those terms apply with certain conditions. The FMLA, which has adopted
the guidelines of the Americans with Disabilities Act (ADA), requires that any fitness-for-duty examination
as a condition of returning to work must be job-related and consistent with business necessity.

As you have noted in your letter, a part of the CBA includes, by reference, the handbook and manual
provisions regarding “return-to-work medical certifications,” which are detailed medical reports, and
“fitness-for-duty examinations.” If the above-referenced return-to-work medical certification and fitness-
for-duty examination provisions in the handbook and manual are a part of the CBA as you have asked
that we assume, then these provisions would apply instead of FMLA’s return-to-work certification
requirements. If these provisions are not part of the CBA, then FMLA’s return-to-work certification
requirements would apply. This conclusion is consistent with the district court case referenced in your
letter, i.e., Albert v. Runyon
, where the court determined that the terms for a United States Postal Service
District Manager returning to work were neither governed by a CBA, nor State or local law. In that case,
the court determined that the FMLA would only require as a condition of restoration that the employee
submit to the employer a certification obtained from the employee’s health care provider that consisted of
a simple statement of the employee’s ability to return to work.

With respect to your letter on the effect of
Name* failure to give timely notice for return-to-work
certifications, the regulations, at §825.310(e), discuss FMLA’s notification procedures as they relate to
medical certification requirements as a condition for reinstatement to the same or an equivalent position.
This regulation tracks closely the general notification (§825.301(a)) and employee specific notification
(§825.301(b)) requirements as they would relate to an employer’s obligation to communicate its
restoration policies to employees who are returning to work following FMLA leave due to their own
serious health condition. Employers must notify employees in writing of their obligations and what
happens if they fail to meet these obligations within a reasonable period of time, generally one or two
business days, if feasible, following the employee’s request for leave that is FMLA-qualifying. It should be
noted that these notification requirements would permit the employer to modify the notice applicable to
the return-to-work certification if the employee’s medical condition should change during the course of the
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

leave and affect the certification requirements. In this situation, the employer’s modified notice to the
employee should come shortly after receipt of information from the employee that the medical condition
has changed (i.e., within two business days absent extenuating circumstances).

The FMLA notification procedures establish the minimum notice due even when a CBA establishes the
return-to-work certification requirements. If an employee’s reinstatement is delayed as a result of the
employer’s failure to provide timely notice under the FMLA, the lack of notice would result in interference
with and violation of the employee’s statutory right to reinstatement. In such a situation, the employer can
neither count the additional time against the employee’s FMLA leave entitlement, nor penalize the
employee for being absent. On the other hand, if the employer has provided a timely notice as specified
in the FMLA regulations, that clearly identifies what the CBA requires the employee to submit, the
employer may delay restoration until the employee submits the required certification. (See §§825.310(f),
825.311(c), and 825.312(c).)

I hope that this letter has fully responded to your concerns. If you require further assistance, please do
not hesitate to contact me.

Sincerely,

Michelle M. Bechtoldt
Office of Enforcement Policy
Family and Medical Leave Act Team

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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