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).

Background

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.

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