Tuesday, September 4, 2007
Requiring a return-to-work medical certification of full duty or no restrictions violates the FMLA
Rather than reporting on Clark v. Gospel Light Publications, I'll merely direct everyone over to The FMLA Blog. The Clark case holds that a policy requiring that a return-to-work medical certification specify that the employee can work full duty or without restriction violates the FMLA. When you couple this opinion with Bryson v. Regis, in which an FMLA claim was allowed to continue even though the employee could not perform the essential functions of her job at the end of her leave, the FMLA is becoming more and more difficult for employers to administer. Companies face an awful Hobson's choice. You violate the FMLA if you require a doctor's note attesting to the employee's ability to return without restrictions, and also violate the FMLA if you refuse to accept a doctor's note requesting light duty. The FMLA was never intended to create job rights beyond 12 weeks, and yet these two recent decisions seem to do exactly that, much to the likely chagrin of HR departments everywhere.
Written by Jon Hyman, a partner in the Labor & Employment group of Meyers Roman Friedberg & Lewis. For more information, contact Jon at (216) 831-0042, ext. 140 or firstname.lastname@example.org.