United States: Third Circuit Sets Standard For Return To Work Under The Family And Medical Leave Act

On August 27, 2014, the U.S. Court of Appeals for the Third Circuit issued an opinion in Budhun v. Reading Hospital and Medical Center reversing the U.S. District Court for the Eastern District of Pennsylvania, which granted summary judgment in favor of defendant Reading Hospital and Medical Center ("Reading Hospital") on its former employee's interference and retaliation claims under the Family and Medical Leave Act (FMLA). In doing so, the Third Circuit set the standard an employer is required to meet with respect to an employee's request to return to work following an FMLA-protected leave of absence.

Plaintiff Vanessa Budhun ("Budhun") was hired by Reading Hospital as a credentialing assistant, a position that required her to be typing approximately 60 percent of the time. The issue in the case arose when Budhun broke a bone in her hand, thus restricting the full use of her hands and fingers for typing.

On August 2, 2010, Budhun reported to work with a splint on her hand. Shortly thereafter, a human resources representative advised her that her injury prevented her from working full duty and provided her with FMLA leave paperwork. Budhun received medical attention and, by email dated August 12, 2010, submitted a portion of her completed leave of absence paperwork and a note from her doctor informing Reading Hospital that she could return to work on August 16, 2010 with no restrictions.

On August 16, 2010, Budhun returned to work. She emailed human resources to submit the balance of her FMLA leave paperwork; advised that FMLA leave certification from her physician was forthcoming; authorized Reading Hospital to contact her medical providers directly; and advised that she was working with a splint on her hand and could type, albeit a bit slower than she had before her injury. Human resources responded to Budhun's email advising that if she was unable to type at full speed, she was not considered full duty and would need to obtain a doctor's note to remain out of work until she was restored to full speed.

Budhun resumed her leave of absence, and her physician advised Reading Hospital that she would be out on leave through November 9, 2010. Reading Hospital approved her FMLA through September 23, 2010 (the date at which her 12 weeks of allotted FMLA leave was exhausted) and approved non-FMLA leave through November 9, 2010. In a September 15, 2010, meeting, however, various representatives of Reading Hospital met to discuss replacing Budhun if she was unable to return by the end of the 12-week FMLA period. On September 25, 2010, following the expiration of her leave of absence, Reading Hospital replaced Budhun.

Plaintiff's FMLA Interference Claim Survived Summary Judgment Because the Defendant Did Not Provide Plaintiff or Her Physician with a List of Essential Job Functions to Evaluate in the Fitness-for-Duty Certification

Budhun sued Reading Hospital, alleging interference and retaliation claims under the FMLA. The district court granted the employer's motion for summary judgment on both claims. With regard to the interference claim, the Third Circuit held that the district court erred in granting the employer summary judgment, as Budhun had adduced sufficient evidence that she invoked her right to return to work on August 16, 2010, and Reading Hospital interfered with that exercise. In particular, the court instructed that "[a]n employer may require that th[e return to work] certification address the employee's ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave." 2014 U.S. Dist. LEXIS 16541, at *15–16 [citing 29 C.F.R. § 825.312(b)]. In this case, because Reading Hospital did not provide her with such a list, Budhun's fitness-for-duty certification was based on the description she supplied to her physician and her physician found her able to work without restrictions. Rather than contact her physician, as Budhun authorized it to do, Reading Hospital concluded that she was not ready to return without restrictions since she could not type using all of her fingers. This, the court held, was sufficient to allow a reasonable jury to conclude that Budhun attempted to invoke her right to return to work, and Reading Hospital interfered with that right.

Reading Hospital further maintained that Budhun was unable to perform the essential functions of her position, and it therefore did not violate the FMLA because it had no duty to restore her to her position under the circumstances. Again, the court found that Reading Hospital was not entitled to summary judgment on this point because it did not provide Budhun's physician with a list of essential functions to consider in certifying her fitness for duty. Moreover, as Budhun testified that she was able to complete her essential functions in a timely manner, though slower than her typical pace, Reading Hospital had not proven that she was unable to perform the essential functions of the position.

Finally, the court rejected Reading Hospital's argument that it could not have interfered with Budhun's right to return to work on August 16, 2010, because it did not approve her absence as an FMLA-covered leave of absence until August 17, 2010. The court summarily dismissed this argument on two grounds: (1) Reading Hospital backdated Budhun's leave of absence as beginning on August 2, 2010; and (2) based on Edrman v. Nationwide Insurance Company, 582 F.3d 500 (3d Cir. 2009), in which the court held that "it is the time that an employee invokes rights under the FMLA that matters, not when his or her employer determines whether the employee's leave is covered by the FMLA." 2014 U.S. Dist. LEXIS 16541, at *23.

Plaintiff's FMLA Retaliation Claim Survived Summary Judgment Because the Defendant Devised a Plan to Replace Her at the Cessation of the 12-Week FMLA Period and Implemented That Plan Two Days After Her Leave Exhausted, Meeting the Adverse Employment Action and Causation Prongs of the Prima Facie Case

The Third Circuit also reversed the district court's entry of summary judgment on Budhun's FMLA retaliation claim. The district court agreed with Reading Hospital that Budhun could not establish the second and third prongs of a prima facie case of retaliation, namely: Her separation from Reading Hospital was not an adverse action because she was unable to return to work at the conclusion of her FMLA leave, and she could not establish any temporal nexus between her termination and her FMLA leave because she was officially terminated two months after her FMLA leave expired.

The Third Circuit found sufficient evidence from which a reasonable jury could conclude that Budhun suffered an adverse employment action. Reading Hospital permanently replaced her at the conclusion of her FMLA leave; advised her that she was no longer free to return to her previous job; demanded that she turn in her badge and keys; and told her to pick up her personal belongings, which another employee had packed into a box. She was not offered another position at the hospital, and she was ineligible to transfer to another position. This, the court held "certainly altered her 'privileges of employment,' as she could no longer even enter her place of work." Id. at *28–29. The court emphasized that it has "never required formal termination to be a necessary element of [a retaliation] action." Id. at *29.

With respect to the third prong, the causation prong, the court held that sufficient evidence of suggestive temporal proximity existed. Rather than focusing on the dates on which her FMLA leave was exhausted and she was terminated, the court focused on the management meeting of September 15, 2010, where the decision was made to permanently replace her as of the conclusion of her FMLA leave and the implementation of that decision just two days after her FMLA leave expired.

Plaintiff's ADA "Regarded As" Disabled Claim Did Not Survive Summary Judgment Because Her Impairment Was Transitory and Minor

Finally, the court affirmed the district court's denial of Budhun's request for leave to amend the complaint to add a "regarded as" disabled claim under the Americans with Disabilities Act (ADA). The court agreed that Budhun's injury was transitory and minor, which under the statute, "curtails an individual's ability to state a 'regarded as' claim." Id. at *33 [citing 42 U.S.C. § 12102(3)(B)].

Lessons for Employers to Consider

Following Budhun v. Reading Hospital, employers should consider reviewing their job descriptions to ensure that they are fully developed and contain detail with respect to each essential function. In addition, with respect to any employee who is approved for an FMLA-covered leave of absence, employers should "provide [] a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave," and may "require that th[e return to work] certification address the employee's ability to perform the essential functions of her job." 2014 U.S. Dist. LEXIS 16541, at *15–16. In addition, employers may want to provide a second copy of the essential functions to the employee or the employee's physician (if such contact is authorized by the employee) when the employee notifies the employer of his or her intention to return to work—thereby ensuring that the physician will address the employee's ability to perform each essential functions of the position in the fitness-for-duty certification.

If you have questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.