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After brief FMLA leave, can we request a second opinion to make sure worker is ready to return?

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in FMLA Guidelines,Human Resources

Q. We have an employee returning from a leave taken under the federal FMLA and the California Family Rights Act (CFRA). His physician has issued a fitness-for-duty certificate. However, we have doubts about the worker’s ability to perform his job. We’re worried that he didn’t have enough time to recover completely. Further, the fitness-for-duty certificate simply states that he is “able” to work; it doesn’t address his specific job requirements. Can we send him to another physician for a second fitness-for-duty examination?

A. Not for the reasons that you describe. The FMLA and its regulations clearly state that the employer must accept the employee’s fitness-for-duty certification.

You can, with the employee’s permission, request clarification of the worker’s fitness-for-duty certificate from his health care provider. However, you cannot require a second opinion. Moreover, the regulations state that the certificate “need only be a simple statement of an employee’s ability to return to work.”

You can, however, require the employee to submit to a fitness-for-duty examination when you have independent reasons (separate from the facts surrounding the leave itself) to doubt the employee’s ability to perform his job. In such situations, the worker should be permitted to return to his job. Then if questions about his fitness for duty arise because of problems he has actually performing the work, you can then require another examination.

Note: The CFRA regulations do not specifically address this situation. However, the FMLA regulations have been incorporated by reference into the state law.

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