86 the “100% cured” policy for employees returning from FMLA leave

Photo Apr 30, 10 57 11 AM

My other car is a minivan

Last Summer, I blogged here about how requiring an employee with a disability to stay out of work until 100% cured (i.e., a no-restrictions policy) automatically violates the Americans with Disabilities Act. As courts have described it, the policy does not allow a case-by-case assessment of an individual’s ability to perform essential functions of the individual’s job, with or without accommodation.

ADA violation…check!

But, what about having a 100%-cured policy for an employee taking leave under the Family and Medical Leave Act?

We’ll see you when you’re 100% cured, or not.

In Dykstra v. Florida Foreclosure Attorneys, PLLC (opinion here), the plaintiff, an IT Director for a law firm, alleges that she took FMLA leave for a bad back. According to the plaintiff, about a month before her FMLA ran out, she told the law firm that she wanted to return to work and provided the law firm with a fitness for duty certification. That certification stated that she could return to work with light-duty restrictions. But, according to the plaintiff the law firm, oh, this law firm…

  • It refused to allow the plaintiff to return to work until she was “100% cured.”
  • Then, a few days before the plaintiff’s FMLA leave expired, the law firm reaffirmed to the plaintiff 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.
  • And, on the day that the plaintiff’s FMLA leave expired, the law firm informed the plaintiff that her employment would be terminated if she could not return to work in two days “100% cured.”
  • So, the law firm then terminated the plaintiff.

Thus, the plaintiff sued for FMLA interference and retaliation and violation of the ADA. The law firm responded with a motion to dismiss.

A 100%-cured policy may violate the FMLA too.

[Editor’s Note: For you non-lawyers who may not be familiar with the the rules of civil procedure, a motion to dismiss is a hallmark of a case just getting started. Indeed, the law firm has not yet had its chance to tell its side of the story. We’re just dealing with allegations here — not necessarily “facts.”]

In its motion to dismiss, the law firm focused on the adequacy of the plaintiff’s FMLA return-to-work certification. While an employee returning from FMLA leave has the right to reinstatement to the same position, an employee who fails to provide a validly requested fitness-for-duty certification loses her right to reinstatement.  The law firm argued that the “light duty restrictions” qualifier to the plaintiff’s fitness-for-duty certification made the certification inadequate. And, with an inadequate certification, the plaintiff did not have a right to be reinstated. Thus, the law firm could fire her.

Well, about that…

The Court holds that the provision of such a fitness-for-duty certification does not foreclose an employee’s FMLA claim. The Court interprets the FMLA regulations regarding the submission of an “able to resume work” certification as less demanding than the regulations regarding the employer’s option to a require an “ability to perform essential functions” certification. Hence, the Court concludes that an employee may be “able to resume work” even if she is unable to perform all the essential functions of her job. More particularly, as it pertains to this case, an employee may be able to resume work with restrictions, yet she may or may not be able to perform any one of the essential functions of the position, depending on the specific facts of the case. 

Motion to dismiss denied.

Employer takeaways.

  1. An 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.
  2. If you want the employee to certify that she can perform the essential functions of the job, you must let the employee know and provide her with a list of the essential functions of the job no later than the time you give notice of designating the employee’s leave as FMLA-qualifying.
  3. You cannot ask an employee to certify that she is 100% cured. That’s not how it works.
  4. Rather, if an employee certifies that she can perform the essential functions of the job, but needs a reasonable accommodation (e.g., light duty) to do so, that’s your cue to engage in an interactive dialogue with the employee to see what you can do to help.
  • Dang it, Eric! You posted it first! Again! Grrrr.