This is the next installment in a five-part series offering guidance on how to address the possible fraudulent use of intermittent leave under the Family and Medical Leave Act (FMLA).  In the last posting, I discussed when employers may require recertifications of the serious health condition.  In this posting, we’ll take a look at fitness for duty (FFD) certifications.

Fitness for Duty Certifications

Another mechanism by which employers may attempt to curb intermittent FMLA leave abuse is through fitness for duty (FFD) certifications, which are permitted by the regulations.  29 C.F.R. § 825.312.  An employer may have a uniformly-applied policy or practice that requires all employees on FMLA leave to present certification from a Health Care Provider (HCP) that the employee is able to resume work. 

If the employer wishes to require such FFD certification, it must provide the employee with a list of the essential functions of his/her job at the time that the requisite FMLA Designation Notice is given, and inform the employee in the Designation Notice that the FFD certification must address the employee’s ability to perform those essential job functions.  No second or third opinions are permitted for FFD certifications, although the employer may contact the HCP to clarify or authenticate the FFD certification.

 The regulations specifically address the use of FFD certifications with regard to intermittent leave.  An employer may not require a FFD certification for each intermittent leave absence.  The employer is entitled to require an FFD certification once every 30 days, however, if there are reasonable safety concerns regarding the employee’s ability to perform his/her duties, based on the employee’s serious health condition. 

Reasonable safety concerns are defined by the regulations as “a reasonable belief of significant risk of harm to the individual employee or others.”  In making the determination as to whether reasonable safety concerns exist, the “employer should consider the nature and severity of the potential harm and the likelihood that potential harm will occur.” 

The DOL’s comments to the revised regulations provide examples of intermittent leave situations when a reasonable safety concern exists or fails to exist:

         Exists

  • A delivery person who must lift heavy articles and has a back condition that limits his ability to lift.
  • An air traffic controller with high blood pressure .
  • A roofer suffering from panic attacks.

        Does Not Exist

  • An office worker with periodic seizures.
  • A cashier suffering from migraines.

If the employer is going to request FFD certifications for an employee on intermittent leave, the initial Designation Notice should include the information that for each subsequent instance of intermittent leave, the employee will be required to submit an FFD certification unless such certification has been supplied within the past 30 days.

An employer who receives an FFD certification may not require the employee to submit to another FFD examination by its own HCP.  Under the ADA, however, once the employee returns to work, if the employer has concerns about the employee’s ability to perform his/her job, the employer may require the employee to undergo another (non-FMLA-related) medical examination, as long as such examination is job-related and consistent with business necessity.

Next time, we’ll take a look at non-regulatory options for employers to address potential FMLA intermittent leave abuse.