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Fitness For Duty Certification Under The FMLA


An employer may require that an employee provide a Fitness For Duty Certification before returning to work after taking a leave under the Family And Medical Leave Act (FMLA). 

In order to have a right to such a document, the employer must notify the employee in the FMLA designation notice whether a Fitness For Duty Certification will be required

If a Fitness For Duty Certification will be required, the notice must state whether the certification must address the employee's ability to perform the job functions which are essential to his or her job. If an employer wants job functions addressed, it must provide a list of what it considers to be the employee's essential functions along with the designation notice. The request can only address the condition that necessitated the leave.
An employer had a right to clarify and verify a Fitness For Duty Certification at the employee's cost. An employer does not have a right to require second or third opinions.

An employer cannot deny an employee the right to return to work while doing clarification or certification of a Fitness For Duty Certification. 

Intermittent leave: Where reasonable job safety concerns exist, employers may request a Fitness For Duty certification before allowing an employee to return to work from intermittent leave. The employer is allowed to ask for the certification once every 30 days.  Otherwise, an employer cannot require a Fitness for Duty Certification for each intermittent absence.

Certification may be required every six months for intermittent leave.  It may also be required every 30 days if the employee has used leave during that period and "reasonable safety concerns exist" regarding the employee's ability to perform the job. Safety concerns relate both to the employee's health and/or that of co-workers.

Whether a safety concern is reasonable, depends on the job and the particular conditions. For example, an example of a reasonable safety concern is a delivery person with a heavy lifting requirement who is returning to work after a back injury. 

Confidentiality: Certifications are considered to be confidential medical records that must be maintained in files separate from an employee's personnel file.

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