Good morning,
We have an employee who has been on an intermittent family and medical leave for depression. Recently she has been coming to work unable to speak clearly and suffering with bouts of dizziness. Since she works with long-term care residents, it is impossible for her to do her job effectively or safely. We placed her on a regular FM leave and asked for a fitness for duty and medical recertification. Her regular doctor who she has seen for her condition refused to complete the recertification stating that he just completed one in May.

Two weeks ago she was hospitlized for the depression in a mental and behavioral healthcare facility. We have not received the recertification or fitness for duty forms to which the employee claims was given to them. The employee called us yesterday asking when she can return to work (still hospitalized) and still unable to speak clearly.

She is protected by the ADA. Since she is also protected under the FMLA, we can't contact the heathcare provider directly until she exhausts her leave entitlement. Correct? What recourse do we have?


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  • Hello, PA HR Gal, and thank you for your inquiry!

    As you’re aware, this is a complicated situation, so let’s take it piece by piece.

    First, let’s start with the foundation for requesting fitness for duty certification in connection with the FMLA leaves taken, here. We assume that the proper foundation for certification has been laid, but just to be sure:

    - Do you have a policy or practice requiring employees in similar jobs who take leave for similar conditions to provide return to work certification? If yes,

    - Was the employee given notice that she would need to provide fitness-for-duty certification and was this notice provided at the time the designation notice (letting the employee know that her leave had been designated as FMLA) was provided? If yes, then the foundation has been set.

    - In addition, when notice was given that return to work certification would be required, was a copy of the employee’s essential job functions provided and was notice given that the return to work certification would also need to address the ability to perform those functions? This is not required, but this added step gives the employer the right to require the fitness-for-duty certification to go beyond a vague “ready for work” statement and to specifically address the ability to perform the essential functions of the job. Again, this is not required, but it’s a good practice for safety-sensitive positions.

    So, now that the foundation for fitness for duty certification has been set, let’s talk about your rights as an employer to require that certification.

    First, let’s start with the intermittent leave for depression.

    While an employer is not entitled to certification for each absence taken on an intermittent or reduced leave schedule, if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties due to the serious health condition for which leave was taken, then the employer is entitled to request a fitness-for-duty certification once every 30 days. So, if the employee’s slurred speech and dizziness gave rise to a reasonable belief of significant risk of harm to the employee or to others, then this would constitute a reasonable safety concern and you could request fitness-for-duty certification in connection with a related intermittent leave absence.

    Instead, as you noted, the employee was placed on continuous leave due to the change in her condition. This new change to continuous leave may have triggered your right to request medical recertification (regardless of when the doctor last provided it). Employers are allowed to request recertification if the circumstances described in the previous certification have changed significantly. If the regular doctor’s initial certification for intermittent leave didn’t cover these new symptoms/circumstances or the possibility for extended/continuous blocks of leave, then your request for medical recertification (and new fitness-for-duty certification) would be permitted.

    However, now the employee has been hospitalized. This hospitalization would certainly go beyond the regular doctor’s initial certification for intermittent leave and would certainly demonstrate a change in circumstances (e.g., the severity of the employee’s condition). So, medical recertification and a new return to work certification after the period of hospitalization are warranted.

    With regard to the certification forms, as long as the employee was given notice (no later than designation of her leave as FMLA leave) that return to work certification would be required, then you have fulfilled your notice requirement and it is the employee’s responsibility to obtain that certification (as well as the medical recertification) and provide it to you.

    So new copies of the certification forms can simply be made available to the employee. It is her responsibility to ensure that they are delivered to the medical providers, completed, and returned.

    Now, as long as you have fulfilled your notice requirements as detailed above, you do not have to return the employee to work until she returns the fitness for duty certification. The employee’s question of “when she can return to work” is actually between the employee and her medical provider – it’s not up to the employer.

    However, once a medical provider certifies that she is fit to return to duty, then you must restore her to her position pursuant to the medical release.

    As you noted, the employer’s ability to contact the medical provider is very limited – you can only contact the provider to clarify and authenticate the accuracy of received certifications. You cannot contact the medical provider to request additional information (or to request certifications that have not been received). So the employee will need to ensure that you receive the requested recertifications.

    Once the employee is released to return to work, then additional ADA accommodations (light duty, reduced schedule, additional leave, etc.) may also come into play, but at this time the certification of her fitness for duty under FMLA is the primary concern.

    I hope this information is helpful and provides some guidance on how to proceed!
  • I am happy to say that we have handled this situation exactly as you described below. She was also given a letter with a medical certification, job description with the essential functions and a position task list to give to her medical provider. She had anticipated she would be hospitalized. She is claiming that they have not completed the form(s). We will work with employee to get the forms before she is able to return.

    Thank you for your guidance, Holly.
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