United States: When The Unauthorized Practice Of Medicine And FMLA Fitness-For-Duty Certification Forms Collide

Although it has been more than two decades since Congress enacted the federal Family and Medical Leave Act (FMLA), many U.S. employers continue to grapple with the intricacies of its requirements. A recent decision from the Third Circuit (the federal appeals court for New Jersey, Delaware, Pennsylvania and the Virgin Islands) illustrates how a decision that might appear to be common sense from a practical standpoint may nevertheless violate the FMLA.  In this case, the court revived a former employee's FMLA claim, which she filed after her employer refused to allow her to return to her clerical position while wearing a splint on her right hand, which limited the use of that hand to her thumb and forefinger. The employee's fitness for duty certificate indicated she was released to return to work without restriction; however, her employer determined, contrary to the physician's findings and without clarifying the employee's job responsibilities with the physician, that the employee was not fit to return to full duty because she did not have "full use of all of her digits." Overruling the lower court's decision in favor of the employer, the Third Circuit held that the employer improperly substituted its medical judgment for that of the physician. Accordingly, the court held that the employee had presented enough evidence to take her FMLA interference claim to a jury. See Budhun v. Reading Hospital and Medical Center, 2014 WL 4211116 (3rd Cir. 2014).


The employee worked as a credentialing assistant for a medical facility. Although her job description did not identify typing as an essential job function or set a minimum word per minute expectation, typing accounted for approximately 60 percent of her job. After a non-work related fracture to her right pinky finger prevented the employee from working "full duty," her employer prompted her to take FMLA leave.  Shortly thereafter, the employee's physician placed her right hand, except for her thumb and forefinger, in a splint. Although the employee told the physician that her job required typing, she explained that she felt she could sufficiently type with the five fingers on her left hand and her thumb and index finger on her right hand. Based on this representation, the physician completed a FMLA fitness-for-duty certification form stating that she could return to work with "[n]o restrictions in splint."  

The employee provided the FMLA paperwork to her employer when she returned to work, and explained that her productivity would suffer because of the splint on her right hand.  Thereafter, the court found that the employer informed the employee that she "needed to perform at the 'same capacity' as she did prior to going on leave and that she should have full use of all her digits in order to be considered full duty." Most importantly, the employer wrote "[i]t seems that your physician was incorrect in stating that you could work unrestricted. If you were truly unrestricted in your abilities, you would have full use of all your digits."

Subsequently, the employee eventually exhausted her remaining FMLA leave and was later terminated.  After her discharge, the employee sued and alleged, among other claims, a FMLA interference claim.  The lower court ruled in favor of the employer, and the Third Circuit reversed this decision, finding the employee should be able to present her FMLA claim to a jury.

Third Circuit's Decision

The FMLA prohibits employers from interfering with employees' exercise of their FMLA rights and requires employers to reinstate employees to the positon held or an equivalent position when they return from FMLA leave.  It also protects employees from being required to take more FMLA leave than necessary.

On appeal, the employer claimed that the employee never attempted to return to work the first time she came to the worksite, because shortly after she arrived she left and sought a doctor's note requesting additional FMLA leave.  However, the Third Circuit found a genuine dispute of material fact regarding whether the employee attempted to invoke her right to return to work when she presented her FMLA paperwork, which returned her to work with "[n]o restrictions in splint," and scheduled her return to work date. In doing so, the court stated that, while employers may request that an employee provide a fitness-for-duty certification before permitting an employee to return to work, an employee's healthcare provider must merely certify that the employee is able to resume work.  To require more information from the healthcare provider, such as whether the employee can perform the essential functions of her job, the employer "must 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." Because the employer never provided the employee with a list of essential job functions to present to her physician, the court found that the physician's paperwork returning her to work with "[n]o restrictions in splint" was sufficient to invoke the employee's rights despite the inconsistent nature of the physician's representation.

The court further found that the employer failed to utilize the methods provided in the FMLA's regulations for situations in which clarification might be needed before returning an employee to work based on a physician's fitness-for-duty certification. Specifically, the court noted that if an employer requires clarification of the fitness-for-duty certification, the employer can, with the employee's written prior permission, contact the employee's health care provider. The court found that, instead of following the regulations, the employer "(who is not a doctor) seemingly overruled [the employee's physician's] conclusion (albeit reached without an employer-provided list of essential job functions) by telling [the employee] that if she was 'truly unrestricted,' she 'would have full use of all of [her] digits.'" Based on those facts, the court determined that the record was sufficient to allow a reasonable jury to conclude that the employee attempted to invoke her right to return to work, and that her employer interfered with that right when it refused her return. 

The court also rejected the employer's argument that it still would have sent the employee home on the day in question because she could not perform the essential functions of her job, noting "[t]he FMLA regulations place the onus on an employee's health care provider – not her employer – to certify whether the employee is unable to perform any essential function of the job." The court further reiterated that although the employer could have provided the employee with a list of the specific functions that were essential to her job so that her physician could determine whether she could perform them, it did not and, instead, "unilaterally determined, . . . that [the employee] could not perform an essential function because she had use of only seven fingers."

Employers' Bottom Line: Employers should ensure that their job descriptions accurately reflect the essential functions of the jobs described. Additionally, they should make sure that their FMLA leave process permits them to require fitness-for-duty certification forms that specify an employee can perform the essential functions of the job.  Employers should also become familiar with the FMLA's process for clarifying confusing or inconsistent fitness-for-duty certification forms. Finally, employers should avoid substituting their opinion for that of a physician when returning an employee to work from an approved FMLA leave.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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 Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions