If you intend to require an employee takingto provide a fitness-for-duty certificate on return, you must make that clear up front when he first requests leave. In addition, provide a specific list of essential functions the employee must be able to perform.
If you don’t, you could lose the right to demand certification, and you’ll have to take the employee’s word for it that he is fit for work.
Recent case: Eddy was in an automobile accident and requestedleave. After surgery, he wanted his old job back. The employer refused and Eddy sued, alleging interference with his rights to return from FMLA leave.
The employer blamed the refusal on Eddy. It said he did not provide a prompt fitness-for-duty certification from his doctors.
But the court said Eddy wasn’t required to do so before being reinstated because the employer hadn’t asked for the certification at the right time. It also hadn’t provided Eddy with a list of essential functions to give his doctors so they could provide the certification. (Reyes v. Phoenix Beverage, No. 13-CV-5588, ED NY, 2016)
Note:make clear that an employer can only condition an employee’s return to work on a fitness-for-duty certification if it has provided notice of that requirement to the employee in a timely manner and only if the employer provided a list of the essential functions of the employee’s position. The employer has five business days to make the request.
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