Physician’s Note Releasing Employee (United States)

Response #1: Employers need to be cautious about the extent to which they require fitness for duty certifications from employees returning from leave. I note that the Family and Medical Leave Act (FMLA) has special rules requiring employers to give written or notice if an employer is going to require fitness for duty certifications, with more extensive notice being required if the employer wants the fitness for duty certification to address essential job functions. I discussed a recent case in the following article: Employers Beware: FMLA Fitness for Duty Certs--Devil is in the Details.

In this case, it appears that FMLA may not be an issue since the employee is returning from short-term disability. However, under the Americans with Disabilities Act (ADA), you should be cautious about pressing for more detail if you do not do so consistently for other employees as well. Another way to handle this is to send a memo to the employee acknowledging receipt of the fitness for duty certification, reminding her of the essential functions of her job (which appear to include outdoor exertion) and asking her to let you know if she has concerns about whether or not she can perform any of the essential functions of the job. I have a standard memo that I advise Human Resources to send so that there is a clear record the company is willing to engage in the ADA interactive process about accommodations.¹

 

Response #2: FMLA does indeed have a specific procedure for requiring a return to work note, and the employee must be made aware of the company's requirement very early in the process - in the "designation notice" that advises the employee that the requested leave has been approved. If you have sent out that approval without advance notice of the company's return to work (RTW) note requirement, it is too late to ask for a RTW or Fitness for Duty (FFD) note under the FMLA.

There is more flexibility under the ADA, but ANY request for medical information must be "job-related and consistent with business necessity." The employer cannot ask for a RTW note as a matter of routine - it must be based on an individualized assessment of the employee's impairment, limitations due to that impairment, and how those limitations might impact the employee's performance of the functions of his position. And it cannot be based on stereotypes or assumptions, but must be based on information or the employer's observations that provide a reasonable belief that the employee may have some performance difficulties due to any remaining impairment.

 

For more information, check out the EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations, available here: https://www.eeoc.gov/policy/docs/guidance-inquiries.html.²

 

Response #3: Under the ADA, you cannot play doctor and make a medical inquiry simply because you have subjective concerns about the employee's ability to return to work and safely perform their essential functions, particularly in the face of a release to return to work. However, if you have objective observations that raise concerns about the employee's ability to safely perform the essential functions of their position, then you can make further medical inquiry describing the objective basis for your concerns (employee complains of pain when performing the job or an inability to perform the job, observed difficulty performing the job) and ask for clarification as to the employee's ability to safely perform the essential functions of the job (listing the essential functions of concern and/or providing a job description).

 

Further inquiry or testing under the FMLA is much more structured and requires notice and consistent application as many have noted.³

Response # 4: If the doctor has provided an unconditional release to full duty, the employer can rely on that note and return the employee to full duty without restriction or accommodation.

It is the employee's responsibility to have an open and frank dialog with his or her physician concerning the nature of the employee's work, the duties and level of exertion involved and other conditions of his or her employment. It would be improper -- and an overreach -- for the employer to endeavor to insert itself into that conversation without good cause.

 

If the employee needed an accommodation, the employer may have cause to request additional or more specific information about the recommendations from the physician or other medical provider. That does not sound like the issue at hand.

 

Thus, I say rely on the note and trust that the employee was forthright with the doctor about his or her position description, responsibilities and work activities.⁴

 

Response #5: Typically you will want to have a fairly consistent approach for requesting RTW notes, both in terms of when a note will be required and how the request is phrased. Be careful of the use of "full duty" or similar language in the request, which may be common in the workers' compensation arena but can be problematic from an employment law standpoint. Our basic approach normally involves providing a copy of the job description to the employee to present to the doctor with the RTW note request that seeks confirmation of the ability to perform the essential functions of the job "with or without a reasonable accommodation" (similar to what you would include in the position announcement).⁵

 

Response #6: Absolutely! And you should make sure her physician reviews and signs the job description to make sure she/he understands the scope of work including physical requirements.⁶

 

Response #7: There is no requirement under the ADA or the FMLA to get a doctor's certification for return-to-work, but many employers, and we are one, generally require it in order to ensure that the employee can handle the work (and does not need any accommodation) and so that the employee is not a danger (to himself or others) if put back into the work environment. The key is consistency -- if you have a policy that requires a return-to-work note, make sure you require it in all cases so that when you have that one particularly tricky situation, you can't be accused of discriminating against one person by forcing them to submit to a return-to-work physical or requiring a return-to-work note that you don't require from everyone. Of course, if the doctor's note says something other than "full duty" you'll have to determine whether you can accommodate a partial-duty return to work or not, which is its own separate discussion.⁷