Booby scars, or don’t return from FMLA!

With four years of blogging under my belt, I have a pretty good sense of what may audience comes to expect from this labor and employment law blog:

  • typos
  • grammar errors
  • snark
  • “where does Eric find this stuff” posts

For today’s post, I don’t have enough hats to tip to the many readers who emailed me about this hella-crazy FMLA retaliation complaint.

So, get this! A public hospital employee took approved FMLA for breast cancer surgery. However, she alleges that, as a return-to-work requirement, company policy required that she first show her surgery scars to her employer to ensure that she had no open wounds, sutures, or staples.

I get it. Sorta. Hospital environment and all. But the plaintiff refused to submit to the exam. Instead, she had her own doctor verify that she could return to work. However, the plaintiff alleges that her employer refused to accept this certification and insisted on performing its own examination. When the plaintiff refused, she was fired.

OMG, right?!?

Now, remember, we’re just talking about allegations in a complaint; there are two sides to every story.

But, can an employer really insist upon conducting its own medical exam as an FMLA return-to-work requirement?

I doubt it. That is, an employer may require a medical certification from the employee’s doctor for the FMLA condition that precipitated the leave. But, after that, the employer can contact the employee’s health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. The FMLA specifically forbids second or third opinions on a fitness-for-duty certification.

Still, my buds at FMLA Insights note, there may be some Americans with Disabilities Act loopholes. But, they must be “job-related and consistent with business necessity.”

Employer takeaways.

  1. Get familiar with the FMLA return-to-work rules.
  2. Don’t forget about the ADA. But, the Act’s medical exam rules are narrow too.
  3. When in doubt, take a pass on examining mastectomy, vasectomy, any -ectomy scars.




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