FMLA Fitness for Duty Certifications and ADA Regulations

What does the FMLA allow? Employers routinely request fitness for duty certifications for employees returning from medical leave. However, requesting a follow-up medical examination to confirm the medical opinions of an employee’s healthcare provider is ordinarily not permitted. When medical examinations are permitted, they must meet the requirements of the Americans with Disability Act (“ADA”), i.e., they must be job related and consistent with business necessity. See 42 U.S.C. §12112(d).

The regulations are as follows: Generally, employers may require that an employee returning from leave under the FMLA Family Leave and Medical Leave Act (“FMLA”), which was taken for his or her own serious health condition, submit a fitness-for-duty certification to confirm that he or she can perform the essential functions of the job.  These certifications must comply with the ADA’s requirements for medical examinations, i.e., that the test is job-related and consistent with business necessity. See C.F.R. §825.312 (a) (b) & (h).  The company must provide to the employee an accurate list of the essential functions of the job so that the healthcare provider may state whether or not the returning individual will be able to perform those necessary functions.   

An employer may contact the healthcare provider for clarification or to authenticate the certification; however, the company may not delay the employee’s reinstatement and may not seek a second or third opinion on the fitness-for-duty certification provided.  The FMLA does not authorize independent medical examinations (“IME”) to investigate an employee’s fitness-for-duty upon return from FMLA leave. Mahoney v. Ernst & Young, LLP., 487 F. Supp.2d 780 (S.D. Tex. 2006).  In Mahoney, a former Ernst & Young employee asserted FMLA interference and retaliation claims after she was required to submit to an IME. Although Ms. Mahoney had submitted a return to work certification from her doctor, the company, who had observed Ms. Mahoney’s emotional instability, did not agree with the doctor’s conclusion and sought a second opinion through an IME.  In addition to the fact that the FMLA does not authorize IMEs, the company did not allege that the IME met the job related – business necessity component of the ADA, and therefore, could not meet the exception to the prohibition against such tests.   

As noted by the Texas Court of Appeals in Mahoney, other states have concluded that an exam may be allowed without violating the FMLA when state regulations mandate that particular fitness for duty requirements be met.  See Cooke v. C. Bean Transp., Inc., 72 Fed. Appx. 740, 744 (10th Cir. 2003) (Department of Transportation regulations required fitness for duty exam for employees returning to work after leave); Porter v. U.S. Alumoweld Co., 125 F.3d 243, 247 (4th Cir. 1997) (exams may be permitted if requirements of ADA are satisfied).  In these instances, the ADA’s job related and consistent with business exception was satisfied.

It is also important to remember that an employee returning from FMLA leave may request a reasonable accommodation that would enable that individual to perform the essential functions of his or her position.  In those instances, the other provisions of the ADA may apply and should be considered as part of the individual’s return-to-work assessment. 

When are Medical Examinations Permitted Under the ADA?

The burden is on the employer to show that the medical examination serves a genuine business necessity given the particular job duties at issue, and is no more intrusive than necessary to accomplish the company’s legitimate goal.  It is not necessary for the employer to demonstrate that the testing method chosen is the only way of achieving a business necessity. 

Wice v. General Motors Corp., 2008 WL 5235996 (E.D. Mich.) is one of only a handful of cases to provide guidance on what constitutes medical testing that meets the job-related and business necessity requirements of the ADA’s exception to the ban on medical testing in the employment context.  In Wice, the court upheld General Motors Corporation’s (“GM”) medical screening process for employees to verify their ability to safely operate mobile equipment such as forklifts, cranes and bulldozers.  GM required all millwright employees, including Harvey Wice, to renew their in-plant driver’s license every three years.  As part of that process, employees were required to attend refresher training and pass a medical examination to ensure that these individuals had the reflexes, visual acuity, musculature and coordination necessary to operate equipment safely.  GM claimed that the medical examinations also helped the company meet state safety regulations that mandated that employees who operated heavy equipment meet minimum fitness standards.

Wice had successfully renewed his in-plant license on many occasions since 1971, but in 2001, he refused to take the medical test required to renew the license.  GM allowed Wice the opportunity to have the exam conducted by his own doctor, who concluded that “Wice was able to work and drive and operate equipment.”  GM determined that more detailed information was required and asked Wice to complete a more detailed form, but he refused.  Wice was then barred from operating mobile equipment in the plant, and for a period of time, was barred from working overtime because there might be a risk that no other employee who could operate mobile equipment would be on site after hours.

The court agreed with GM, and concluded that the medical testing employed by the company satisfied the business necessity test because it was related to whether Wice was able to safely perform the essential functions of his job.  Screening employees for medical conditions that might interfere with their ability to operate heavy equipment was a reasonably effective means of achieving the goal of ensuring workplace safety. 

The Bottom Line

Ordinarily, employees returning from FMLA medical leave taken for their own serious illness must provide only a fitness for duty certification to be entitled to reinstatement.  When state regulations or other special circumstances necessitate an actual medical examination to verify a certain fitness for duty, the ADA requires that the test must be job related and consistent with business necessity.

The information contained in this article is not designed to address specific situations, and does not include rules or regulations that apply to all states.  If you have questions concerning this topic, you should consult with legal counsel of your choice to obtain advice on various fact specific matters.

Robin Foret is the managing partner of The Foret Law Firm and is board certified in labor and employment by the Texas Board of Legal Specialization.  Ms. Foret specializes in employment related matters and employment litigation on behalf of companies and executive level employees.

Robin Foret

The Foret Law Firm

10000 N. Central Expressway, Suite 400

Dallas, Texas 75231

(214) 890-4034