to work (i.e., a ``fitness-for-duty'' report)?
(a) As a condition of restoring an employee whose FMLA leave was
occasioned by the employee's own serious health condition that made the
employee unable to perform the employee's job, an employer may have a
uniformly-applied policy or practice that requires all similarly-
situated employees (i.e., same occupation, same serious health
condition) who take leave for such conditions to obtain and present
certification from the employee's health care provider that the employee
is able to resume work.
(b) If State or local law or the terms of a collective bargaining
agreement govern an employee's return to work, those provisions shall be
applied. Similarly, requirements under the Americans with Disabilities
Act (ADA) that any return-to-work physical be job-related and consistent
with business necessity apply. For example, an attorney could not be
required to submit to a medical examination or inquiry just because her
leg had been amputated. The essential functions of an attorney's job do
not require use of both
legs; therefore such an inquiry would not be job related. An employer
may require a warehouse laborer, whose back impairment affects the
ability to lift, to be examined by an orthopedist, but may not require
this employee to submit to an HIV test where the test is not related to
either the essential functions of his/her job or to his/her impairment.
(c) An employer may seek fitness-for-duty certification only with
regard to the particular health condition that caused the employee's
need for FMLA leave. The certification itself need only be a simple
statement of an employee's ability to return to work. A health care
provider employed by the employer may contact the employee's health care
provider with the employee's permission, for purposes of clarification
of the employee's fitness to return to work. No additional information
may be acquired, and clarification may be requested only for the serious
health condition for which FMLA leave was taken. The employer may not
delay the employee's return to work while contact with the health care
provider is being made.
(d) The cost of the certification shall be borne by the employee and
the employee is not entitled to be paid for the time or travel costs
spent in acquiring the certification.
(e) The notice that employers are required to give to each employee
giving notice of the need for FMLA leave regarding their FMLA rights and
obligations (see Sec. 825.301) shall advise the employee if the employer
will require fitness-for-duty certification to return to work. If the
employer has a handbook explaining employment policies and benefits, the
handbook should explain the employer's general policy regarding any
requirement for fitness-for-duty certification to return to work.
Specific notice shall also be given to any employee from whom fitness-
for-duty certification will be required either at the time notice of the
need for leave is given or immediately after leave commences and the
employer is advised of the medical circumstances requiring the leave,
unless the employee's condition changes from one that did not previously
require certification pursuant to the employer's practice or policy. No
second or third fitness-for-duty certification may be required.
(f) An employer may delay restoration to employment until an
employee submits a required fitness-for-duty certification unless the
employer has failed to provide the notices required in paragraph (e) of
this section.
(g) An employer is not entitled to certification of fitness to
return to duty when the employee takes intermittent leave as described
in Sec. 825.203.
(h) When an employee is unable to return to work after FMLA leave
because of the continuation, recurrence, or onset of the employee's or
family member's serious health condition, thereby preventing the
employer from recovering its share of health benefit premium payments
made on the employee's behalf during a period of unpaid FMLA leave, the
employer may require medical certification of the employee's or the
family member's serious health condition. (See Sec. 825.213(a)(3).) The
cost of the certification shall be borne by the employee and the
employee is not entitled to be paid for the time or travel costs spent
in acquiring the certification.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]
