FMLA Fitness for Duty Certifications and the ADA

Employers routinely request fitness for duty certifications for employees returning from medical leave under the Family and Medical Leave Act (FMLA). The FMLA's fitness for duty certification is simply a doctor's note, stating that the employee is able to resume work. However, an employer that requests a follow-up medical examination might violate a different federal law, the Americans with Disabilities Act (ADA).

What the FMLA Allows

Under the FMLA, an employer may require employees who take leave for their own serious health condition to provide a fitness for duty certification: a signed statement from a health care provider indicating that the employee is able to return to work.

The employer may require that the certification specifically address the employee's ability to perform the essential functions of the job, but only if the employer tells the employee that this will be required and gives the employee a list of the essential job functions when the employer first designates the employee's time off as FMLA leave.

What the ADA Allows

The Americans with Disabilities Act (ADA), the federal law that prohibits disability discrimination, also regulates fitness for duty exams. Because a fitness for duty exam could reveal information about an employee's disability, they are allowed only in limited circumstances under the ADA.

A fitness for duty exam must be job related and consistent with business necessity under the ADA. Generally, this standard will be met if:

• the employer reasonably believes that the employee's condition may prevent him or her from preventing the essential functions of the job, or
• the employee poses a direct threat to his or her own safety or the safety of others.

Wice v. General Motors Corp., 2008 WL 5235996 (E.D. Mich.) is one of only a handful of cases to provide guidance on the job-related and business necessity requirements for medical exams, including fitness for duty exams, under the ADA.

In Wice, the court upheld General Motors Corporation's 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 they 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 mandating 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 concluded that the medical testing required by GM 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.

Employers Must Follow Both the FMLA and the ADA

An employer that asks an employee returning from FMLA leave to submit a fitness for duty certificate must also meet the ADA requirements. 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 claimed that her employer violated the FMLA by requiring her 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 argue that the IME met the ADA's requirements for medical exams.

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 impose particular fitness for duty requirements. See Cooke v. C. Bean Transp., Inc., 72 Fed. Appx. 740, 744 (10^th 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 (4^th Cir. 1997) (exams may be permitted if requirements of ADA are 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.

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.