(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. The employee has the same obligations
to participate and cooperate (including providing a complete and
sufficient certification or providing sufficient authorization to the
health care provider to provide the information directly to the
employer) in the fitness-for-duty certification process as in the
initial certification process. See Sec. 825.305(d).
(b) An employer may seek a fitness-for-duty certification only with
regard to the particular health condition that caused the employee's
need for FMLA leave. The certification from the employee's health care
provider must certify that the employee is able to resume work.
Additionally, an employer may require that the certification
specifically address the employee's ability to perform the essential
functions of the employee's job. In order to require such a
certification, an employer must provide an employee with a list of the
essential functions of the employee's job no later than with the
designation notice required by Sec. 825.300(d), and must indicate in
the designation notice that the certification must address the
employee's ability to perform those essential functions. If the
employer satisfies these requirements, the employee's health care
provider must certify that the employee can perform the identified
essential functions of his or her job. Following the procedures set
forth in Sec. 825.307(a), the employer may contact the employee's
health care provider for purposes of clarifying and authenticating the
fitness-for-duty certification. 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. No second or third opinions on
a fitness-for-duty certification may be required.
(c) 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.
(d) The designation notice required in Sec. 825.300(d) shall
advise the employee if the employer will require a fitness-for-duty
certification to return to work and whether that fitness-for-duty
certification must address the employee's ability to perform the
essential functions of the employee's job.
(e) 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 notice required in paragraph (d) of
this section. If an employer provides the notice required,
an employee who does not provide a fitness-for-duty certification or
request additional FMLA leave is no longer entitled to reinstatement
under the FMLA. See Sec. 825.313(d).
(f) An employer is not entitled to a certification of fitness to
return to duty for each absence taken on an intermittent or reduced
leave schedule. However, an employer is entitled to a certification of
fitness to return to duty for such absences up to once every 30 days if
reasonable safety concerns exist regarding the employee's ability to
perform his or her duties, based on the serious health condition for
which the employee took such leave. If an employer chooses to require a
fitness-for-duty certification under such circumstances, the employer
shall inform the employee at the same time it issues the designation
notice that for each subsequent instance of intermittent or reduced
schedule leave, the employee will be required to submit a fitness-for-
duty certification unless one has already been submitted within the
past 30 days. Alternatively, an employer can set a different interval
for requiring a fitness-for-duty certification as long as it does not
exceed once every 30 days and as long as the employer advises the
employee of the requirement in advance of the employee taking the
intermittent or reduced schedule leave. The employer may not terminate
the employment of the employee while awaiting such a certification of
fitness to return to duty for an intermittent or reduced schedule leave
absence. Reasonable safety concerns means a reasonable belief of
significant risk of harm to the individual employee or others. In
determining whether reasonable safety concerns exist, an employer
should consider the nature and severity of the potential harm and the
likelihood that potential harm will occur.
(g) 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.
(h) Requirements under the Americans with Disabilities Act (ADA),
as amended, apply. After an employee returns from FMLA leave, the ADA
requires any medical examination at an employer's expense by the
employer's health care provider be job-related and consistent with
business necessity. 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
or her job or to his/her impairment. If an employee's serious health
condition may also be a disability within the meaning of the ADA, the
FMLA does not prevent the employer from following the procedures for
requesting medical information under the ADA.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68105, Nov. 17, 2008]
