By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 26: FMLA Rights Concerning Return to Duty
This article is the 26th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the several weeks and continuing for the next several weeks, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering are addressed in detail in our newest book: HELPING THE INJURED OR DISABLED MEMBER: A GUIDEBOOK FOR THE WASHINGTON LAW ENFORCEMENT AND FIRE UNION REPRESENTATIVE. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 26th article in these newsletter series provides a discussion return to work rights under the FMLA. For more information, visit our Premium Website . On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
In the last article in this series, we discussed how employees are covered under the FMLA. In this article, we’ll review how employees, once on FMLA, are allowed to return to duty.
According to the FMLA, the employer may also demand a “certification of fitness” upon the employee’s return.[98] But often there is confusion as to the distinction between this certification and a fitness certification. There is no confusion in the law itself, but often the employer or the employees incorrectly confuse or even conflate the two separate requirements.
In public safety work, injured employees reentering occurs all the time. An employee is injured, later recovers, indicates an ability to return and the employer, upon learning of this, is unsure whether the employee is fit or not. Under the ADA, if the employer has a bona fide reason to question the employee’s fitness, it can demand a fitness for duty examination. But under the FMLA it cannot delay returning the employee to pay status once the employee presents a medical return to work certification.
Under the ADA, if the employer has a bona fide reason to question the employee’s fitness, it can demand a fitness for duty examination. But under the FMLA it cannot delay returning the employee to pay status once the employee presents a medical return to work certification.
This point is well demonstrated in the 2013 decision from the State Supreme Court in Chaney v. Providence Health Care. [99] Chaney developed health issues, and the hospital directed him submit to a fitness exam from their selected doctor. He agreed, but first went to his own physician. The two physicians provided competing explanations as to his fitness for duty. Later he was released by his doctor to return. The employer declined to accept his doctor’s certification, arguing that it was ambiguous. It then fired him when his allowed leave expired.
The Court ruled that Providence Hospital erred by not accepting Chaney return to work certification even though it thought it was ambiguous:
When an employee is placed on leave, the FMLA permits employers to require a note from the employee’s doctor stating that the employee is fit to work before reinstating the employee. The note need be only a simple statement that the employee is able to return to work. The only other requirement is that the statement must be made at the same time the employee is able to return to work. Under the FMLA, if these requirements are met, an employer must reinstate the employee. If the employer is concerned about the adequacy of the fitness for work statement, it may seek a clarification from the employee’s health care provider but may not delay returning the employee to work. [100]
The employer is not without recourse if it genuinely believes the employee may not be fit. The Supreme Court is not saying an unfit employee must be returned to duty. The employee must be returned to pay status. The employee does not have to linger on paid or unpaid leave that might not have even been requested in the first place. Once the employee seeks to return to work and has a certification to support the request, the employer cannot delay that return to debate the merits of the certification.
In the next article in this series, we’ll discuss other issues that arise under the FMLA.
_______________________________
[98] 29 C.F.R. § 825.312 (2014).
[99] 176 Wn.2d 757, 295 P.2d 728 (2013).
[100] 176 Wn.2d at 738.
