Can we demand a second opinion on fitness for duty after FMLA leave?

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in FMLA Guidelines,Human Resources

Q. We have an employee returning from a leave taken under the FMLA. His physician has issued a fitness-for-duty certificate. However, we question the worker’s ability to perform his old job because the length of his absence was too short for him to recover completely. Also, the fitness-for-duty certificate simply states that he is “able” to work, without addressing his specific job duties. Can we send him to another physician for a second fitness-for-duty examination?

A.
Under the original FMLA regulations, you would be out of luck, as you were limited in your ability to deal with this situation. However, under the regulations that take effect Jan. 16, you have more options.

If you have a uniform policy requiring all employees in the same job classification who have the same serious health condition—for example, a back injury—to have a fitness-for-duty certification before returning to work, you can now require that it address whether they can perform the essential functions of their jobs.

In order to obtain this benefit, you have to advise the employee in the required notice of designation of FMLA leave. You must also provide at that time a list of the essential job functions.

However, if that physician certifies that the employee can safely perform the essential functions of the job, just like under the old regulations, you cannot ask for a second opinion.

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