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Require health clearance before FMLA return

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When one of your employees takes FMLA leave, you may require a fitness-for-duty exam showing she is fully able to perform her job before you allow her to return.

Just be sure to follow the Department of Labor’s rules, which state: “As a condition to restoration, an employer may require a certification from the health care provider of the employee that the employee is able to resume work.”

As long as you require everyone who takes FMLA leave to undergo fitness-for-duty exams, the rules authorize you to discharge workers who can’t or don’t provide certification before their return.

Recent case: Sarah had a serious back injury that qualified her for FMLA leave. Her employer had a policy that required all employees returning from FMLA leave to be cleared for duty through a fitness exam. Sarah could not get her doctors to clear her. Instead, they placed a restriction on her, limiting the amount she should lift. The employer then terminated Sarah.

She sued, alleging she hadn’t been restored to her position even though she could do the job, but with a lifting restriction.

The court upheld her termination, reasoning that she hadn’t and couldn’t provide a fitness-for-duty certification showing she was fully healed. (Dykstra v. Florida Foreclosure Attorneys, No. 9:15-CV-80006, SD FL, 2015)

Warning: Before you automatically terminate employees for failing to provide certification that they are fully healed, remember that they may request a reasonable accommodation—if they can show they are disabled under the ADA. While a minor lifting restriction probably won’t qualify as a disability, lingering symptoms or permanent, significant restrictions may.

If the employee requests an accommodation, discuss the nature of the disability and reasonable accommodations that might be appropriate, including extending unpaid leave until she is able to return to full duty.

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