Second Opinion on Fitness-for-Duty Certificate

Q. We have an employee returning from FMLA leave. His physician issued a fitness-for-duty certificate, but 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. Further, 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.L.

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. Although the employer can, with the employee’s permission, request “clarification” of the fitness-for-duty certificate from the worker’s health care provider, it 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.”

An employer can, however, require employees to submit to a fitness-for-duty examination when it has independent reasons, separate from the facts surrounding the leave itself, to doubt the employee’s ability to perform his or her job. In such situations, employers should permit the worker to return to his or her job and, if questions about his or her fitness for duty arise from actual work performance, the employer can then require another examination.