What is an employer to do when an employee who goes out on Family and Medical Leave Act ("FMLA") leave is ready to return prior to the expiration of their leave, but is not "100% cleared" to return to work? A federal court in Florida recently addressed this issue.
Returning to Work After FMLA Leave
The FMLA grants eligible employees the right to leave in certain situations "and the right following leave 'to be restored by the employer to the position of employment held by the employee when the leave commenced' or to an equivalent position." However, an employee does not have a right to restoration if after the FMLA-leave period the employee remains unable to perform an essential function of the position because of a physician or mental condition. "Unable to perform the functions of the position" is defined as "the health care provider find[ing] that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee's position."
One way employers are able to determine whether an employee is able to perform the functions of their position, and thus whether the employee is entitled to restoration, is a fitness-for-duty certification. The FMLA allows an employer, as part of a uniformly applied practice or policy, to condition an employee's right to be restored to her position on the employee "receive[ing] certification from the health care provider of the employee that the employee is able to resume work." If an employee fails to provide a validly requested fitness-for-duty certification, they lose their right to restoration.
The FMLA regulations concerning fitness-for-duty certifications contemplate two types of certifications: 1) one where the healthcare provider certifies that the employee is "able to resume work"; 2) one that "specifically address[es] the employee's ability to perform the essential functions of the employee's job." In order to require either type of fitness-for-duty certification as a condition for restoration, the employer must advise the employee in its notice designating the employee's leave as FMLA-qualifying that it will require a fitness-for-duty certification for the employee to return to work. The FMLA regulations are more demanding on an employer who seeks to require the second type of certification. To require the second type of certification, the employer "must provide an employee with a list of the essential functions of the employee's job no later than " the time it gives notice of designation the employee's leave as FMLA-qualifying, and the designation notice itself must indicate "that the certification must address the employee's ability to perform those essential functions." Regardless of which certification is required, an employer may request clarification of the certification from the healthcare provider. "The employer may not delay the employee's return to work while contact with the health care provider is being made."
Sandra Dykstra v. Florida Foreclosure Attorneys, PLLC and Rick Felberbaum
In Dykstra, a federal district court in Florida was presented with a Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6)) by the Defendants, a large Palm Beach County law firm with more than 50 employees and another lawyer, on plaintiff's FMLA interference, FMLA retaliation, and disability discrimination claims under both Title I of the Americans with Disabilities Act and Florida's comparable state law.
The plaintiff, Sarah Dykstra, was employed as the Information Technology Director for Defendants. Due to a back injury, Dykstra took leave under the FMLA. Approximately one month before the expiration of her FMLA leave, Dykstra told the defendants that she wanted to return to work and was able to do so. Toward that end, Dykstra provided the defendants with a fitness-for-duty certification stating that she was medically cleared to return to work with light duty restrictions. Defendants refused to allow Dykstra to return to work until she was "100% cured."
A few days before Dykstra's FMLA leave was to expire, defendants informed Dykstra that she could not return to work unless she provided a medical certification confirming that she was medically cleared to return to work without any restrictions. On the day Dykstra's leave expired, defendants informed Dykstra that her employment would be terminated if she could not return to work in two days "100% cured." When Dykstra didn't do this, she was fired. In her complaint, Dykstra alleged that she was "able to perform the essential functions of the IT Director position with light duty restrictions."
Court's Decision DENYING Defendants' Motion to Dismiss for Failure to State a Claim
In denying the defendants' motion to dismiss, the Court noted that Dykstra's complaint was silent as to which type of fitness-for-duty certification the defendants required, but based on the facts and rest of the allegations contained in the complaint, the Court concluded that the first, less onerous, type of fitness-for-duty certification was requested.
Defendants argued that Dykstra failed to state a claim under the FMLA because her right to be restored to her position was conditioned upon her providing a satisfactory fitness-for-duty certification and that the "light duty restrictions" qualifier to Dykstra's fitness-for-duty certification rendered the certification inadequate and entitled them to refuse to restore Dykstra to her position and ultimately terminate her. Thus, the Court stated, the question before them was whether an employee who provides a fitness-for-duty certification that she is able to return to work "with light duty restrictions" may state a cause of action under the FMLA when the lower threshold "able to resume work" certification is requested. The Court held that the provision for such a fitness-for-duty certification does not foreclose an employee's FMLA claim.
The Court held that an employee may be "able to resume work" even if she is unable to perform all the essential functions of her job, depending on the specific facts of the case, which may be more dispositive in a motion for summary judgment. In making this conclusion, the Court noted that if the ability to resume work and the ability to perform all the essential functions of the job were synonymous, the FMLA regulations would not reference two standards and mandate heightened requirements before the employer could insist on a more demanding "ability to perform essential functions" certification. As it applies to Dykstra, all she was required to provide was a certification from her healthcare provider that she was able to resume work, "i.e., that she was not 'unable to work at all.'"
The Court went on to clarify that the FMLA does not require an employer who fails to properly request an "ability to perform essential functions" certification to retain an employee who is unable to perform the functions of the position. If an employer fails to request an "ability to perform essential functions" certification," the employer may still require medical examination of the employee to ensure that she is able to perform the essential functions of her position. In Dykstra, the Court was only addressing whether Dykstra complied with her FMLA regulatory obligation to provide a satisfactory fitness-for-duty certification. If it is later discovered that Dykstra is in fact not able to perform the essential functions of her position, she would not be entitled to reinstatement.
Because the Court found Dykstra satisfied her obligations under the FMLA with respect to supplying a proper fitness-for-duty, her claims will be allowed to proceed. The Court also allows Dykstra's ADA and FCRA claims to proceed as the Court found she sufficiently plead that she had a "disability," as those terms are defined under the ADAAA.
The case is Sandra Dykstra v. Florida Foreclosure Attorneys, PLLC and Rick Felberbaum, Case No. 15-81275-CIV-MARRA (S.D. Florida, April 26, 2016).