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Know the right way to request FMLA certification, fitness-for-duty notices

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in FMLA Guidelines,Human Resources

When employees have a serious health condition that qualifies them for FMLA leave, employers have the right to some basic information. But you have to ask for it in the right way and at the right time.

Those rules are set out for you in the U.S. Department of Labor FMLA regulations. Miss a step and you could face a lawsuit alleging interference with the right to take FMLA leave.

As an employer, you are permitted—within certain limits—to ask the employee to provide medical information. Specifically, you may initially ask the employee for a certification that he has a serious health condition that makes him eligible for leave. You can later request a certification that he is again fit to return to work.

You can’t wait until the employee is ready to return to ask, though.

Ask for the medical certification showing the employee has a serious health condition as soon as you realize he may need FMLA leave. If you wait, be prepared to justify the delay and why you now have reason to suspect the employee isn’t eligible.

However, if you want a fitness-for-duty certification as a condition of returning to work, you must ask for that certification as soon as you notify the employee you are placing him on FMLA leave. You can’t wait. And you must make the request in writing, accompanied by a list of the employee’s essential job functions.

Recent case: Kereth worked as a security guard for about two years. During his second year, he missed work for what he described as groin pain. After he had missed a few days for the condition, someone from HR called to let him know the company was placing him on FMLA leave. He was advised to bring a note from his doctor saying he was fit to work when he was ready to return.

Kereth got the note, but the company wouldn’t allow him to start work until it had reviewed it. The next day, HR called Kereth and said the note was not specific enough. Kereth had his doctor call HR, but allegedly no one would take the call. The doctor’s office then provided additional notes that in­­cluded a diagnosis. Kereth asked HR if there was a form he should give his doctors to fill out. A few days later, Kereth got an email notifying him that he had been terminated.

Kereth sued, alleging interference with his right to FMLA leave.

The company argued that Kereth hadn’t provided a medical certification showing he had a serious health condition and that it therefore fired him for taking unauthorized leave.

The court said the employer was wrong. It merely told Kereth that he had to bring a note showing he was fit to return.

Firing him before he had a chance to cure any defect in his doctor’s note violated the FMLA certification regulations.

Plus, fitness requests have to be made in writing and include a list of essential functions. Requests can’t single out individuals. They have to be part of an established policy requir­­ing fitness-for-duty certifications. (Powell vs. Metro One Loss Pre­­ven­­tion, No. 12-CIV-4221, SD NY, 2013)

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