Managment of Intermittent Leave and Medical Certifications

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August 22, 2018
Author: Christine S. Keenan
Organization: The Kullman Firm

According to the Department of Labor, intermittent leave is “the single most serious area of friction between employers and employees seeking to use FMLA leave.”  72 Fed. Reg. 35,549. In a recent survey conducted by the Department of Labor of over six hundred HR professionals in the United States, 80% of employers have trouble tracking intermittent leave. Nevertheless, the Department of Labor still emphasis that intermittent leave is a “right” provided by the FMLA. Id.

A. Right to Intermittent Leave
When an employee is entitled to FMLA leave, he may prefer to take it intermittently or on a reduced leave schedule rather than taking off the entire twelve weeks at one time. 29 U.S.C. §2612(b). With intermittent leave, the employee can take leave a few hours or a few days at a time. With a reduced leave schedule, the employee reduces his work hours and works a part-time schedule. An employee’s entitlement to intermittent or reduced leave depends upon the reason for the leave. If the employee requests leave for the birth, adoption, or placement of a child with the employee for foster care, the employee may take intermittent or reduced leave only if the employer agrees to it. Id. The employee is entitled to intermittent or reduced leave when the reason for the leave is his own serious health condition or the serious health condition of a spouse, parent, or child, provided the intermittent or reduced leave is medically necessary. Id.

Employees must try to schedule their intermittent or reduced leave so as not to unduly disrupt the employer's business. 29 C.F.R. §825.203. If the employee requests intermittent or reduced leave which is foreseeable based on planned medical treatment, the employer can require the employee to transfer temporarily to an alternative position with equivalent pay and benefits that better accommodates intermittent leave or a reduced leave schedule. 29 C.F.R. §825.204.

The intermittent leave for the employee’s own serious health condition or the serious health condition of the family member must be medically necessary. 29 C.F.R. §825.202. If the serious health condition causes sporadic periods of incapacity or the inability to work a full workday or workweek, then intermittent or reduced leave must be allowed by the employer for the periods of incapacity or treatment.

29 C.F.R. §825.202 – Intermittent Leave Reasons
(b) Medical necessity. For intermittent leave or leave on a reduced leave schedule taken because of one's own serious health condition, to care for a parent, son, or daughter with a serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. The treatment regimen and other information described in the certification of a serious health condition and in the certification of a serious injury or illness, if required by the employer, addresses the medical necessity of intermittent leave or leave on a reduced leave schedule. See Sec. Sec. 825.306, 825.310. Leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned and/or unanticipated medical treatment of a serious health condition or of a covered servicemember's serious injury or illness, or for recovery from treatment or recovery from a serious health condition or a covered servicemember's serious injury or illness. It may also be taken to provide care or psychological comfort to a covered family member with a serious health condition or a covered servicemember with a serious injury or illness. (1) Intermittent leave may be taken for a serious health condition of a parent, son, or daughter, for the employee's own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

(2) Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition or a serious injury or illness of a covered servicemember, even if he or she does not receive treatment by a health care provider. See Sec. Sec. 825.113 and 825.127.
(c) Birth or placement. When leave is taken after the birth of a healthy child or placement of a healthy child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer's agreement, works part-time after the birth of a child, or takes leave in several segments. The employer's agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition. See Sec. 825.204 for rules governing transfer to an alternative position that better accommodates intermittent leave. See also Sec. 825.120 (pregnancy) and Sec. 825.121 (adoption and foster care).

(d) Qualifying exigency. Leave due to a qualifying exigency may be taken on an intermittent or reduced leave schedule basis. The amount of time allowed for leave must correspond to the number of hours in the employee’s normal workweek. Thus, if an employee normally works fifty hours per week, he would be entitled to twelve fifty-hour weeks of leave, or 600 hours of intermittent leave. 29 C.F.R. §825.205(b).

The employer did not violate the FMLA when it terminated an employee following a profanity-laced dispute over rejection of the documents submitted by the employee for intermittent leave. Hoffman v. Professional Med Team, 10 WH Cases2d 289 (6th Cir. 2005). The employee had requested intermittent leave for migraine headaches, but failed to submit the necessary documents to the employer. When she began using profanity when the documents were rejected, the employer terminated her. Since the employer was reasonable in rejecting the documents, it did not willfully discriminate against her based on her FMLA request when it discharged her.

B. Leave Stacking
In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided by the Department of Labor Regulations. 29 C.F.R. §825.207(d), §300(d). In the case of intermittent leave or leave on a reduced schedule, only one such notice is required unless the circumstances regarding the leave have changed. 29 C.F.R. §300(d) This Regulation was intended to resolve the question of FMLA designation as early as possible in the leave request process, to eliminate protracted “after the fact” disputes. The Regulations expected disputes to be resolved through discussions between the employee and the employer at the beginning of the leave rather than at the end. Because of the possible stacking of unpaid FMLA leave entitlements in addition to an employer’s pre-existing leave plan, the Act mitigates an employer’s exposure to extended leaves by employees by counting all possible FMLA-qualifying absences as FMLA leave. Another conundrum is the occurrence of more than one qualifying event for FMLA-type leaves. An eligible employee is entitled to only 12 unpaid workweeks of leave during any 12-month period for one or more of the FMLA-qualifying reasons. 29 C.F.R. §825.300(c).

C. Reduced Leave Issues
Although an employee on intermittent leave is working a reduced-leave schedule, he/she must receive the same rate of pay as prior to the FMLA leave. The employee may, however, be paid only for the hours the employee actually works. In Green v. New Balance Athletic Shoe Inc., 182 F. Supp. 2d 128 (D.C. Me. 2002), a pregnant employee was unable to do the lifting task of her normal job duties. The employer transferred the employee to a non-lifting temporary job, but also reduced her pay so that it was commiserate with the new tasks. The court held that the employer violated the FMLA, because although it could reassign the employee, her rate of pay, benefits, and terms of employment were required to remain the same. See 29 C.F.R. §§825.214-15. An employer may encourage an employee to take leave in a block of time rather than intermittently by paying the employee his or her regular wages for such leave. However, the employer cannot count the difference between the amount of time needed for the intermittent leave and the leave taken in a block against the employee’s 12–week FMLA entitlement, since the difference is not connected to the employee’s need for FMLA leave. See DOL Op. Ltr., FMLA-44, 1994 WL 1016752 (Sept. 13, 1994).

An employer may not require an employee to take a full day of leave in circumstances where the employee does not need the full day off to attend to the situation requiring FMLA leave. In forcing the employee to take extra leave, the employer would be violating both:
• 29 C.F.R. §541.118(a)(1) (deductions from salary not permitted for absences occasioned by the employer), and
• 29 C.F.R. §825.205 (employee may not be required to take more FMLA leave than necessary to address the circumstance that precipitated the need for the leave). DOL Op. Ltr., FMLA-89 (July 3, 1997). Special consideration must be given to exempt employees. 29 C.F.R. §825.206.

D. Docking of Pay
An employee “exempt” as an “executive, administrative, or professional” employee must be paid on a “salary basis.” 29 C.F.R. §541.602. That means an employee, subject to very limited exceptions, must receive a predetermined amount constituting all or part of his or her compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. See 29 C.F.R. §541.602(a), amending §541.118. The problem arises because deductions for less than a full day’s absence violate the definition and disqualify an employer from utilizing the relevant exemption.

Some courts have held that the mere presence of a policy permitting a partialday’s reduction in pay is not automatically inconsistent with salaried status if no individual ever, in fact, suffered a loss in pay. See Atlanta Professional Firefighters Union, Local 134 v. Atlanta, 920 F.2d 800, 805 (11th Cir. 1991); see also, McDonnell v. City of Omaha, 999 F.2d 293, 297-98 (8th Cir. 1993); York v. City of Wichita Falls, 944 F.2d 236, 242 (5th Cir. 1991). These rulings are contrary to the position of the Wage and Hour Division and the Solicitor of Labor’s Office and the position of other courts. See, e.g., Kinney v. District of Columbia, 994 F.2d 6, 10-11 (D.C. Cir. 1993); Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 617 (2d Cir. 1991), cert. denied, 506 U.S. 905 (1992); Abshire v. County of Kern, 908 F.2d 483, 486-90 (9th Cir. 1990), cert. denied, 498 U.S. 1068 (1991).

Under the FMLA, however, whole day and partial day deductions from the weekly salary are permissible for those exempt employees who are on intermittent or reduced leave. 29 C.F.R. §825.206.

29 C.F.R. §825.206 - Deducting Hourly Amounts from an Employee's Salary
a) Leave taken under FMLA may be unpaid. If an employee is otherwise exempt from minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) as a salaried executive, administrative, or professional employee (under regulations issued by the Secretary), 29 C.F.R. Part 541, providing unpaid FMLA-qualifying leave to such an employee will not cause the employee to lose the FLSA exemption. This means that under regulations currently in effect, where an employee meets the specified duties test, is paid on a salary basis, and is paid a salary of at least the amount specified in the regulations, the employer may make deductions from the employee’s salary for any hours taken as intermittent or reduced FMLA leave within a workweek, without affecting the exempt status of the employee. The fact that an employer provides FMLA leave, whether paid or unpaid, and maintains records required by this part regarding FMLA leave, will not be relevant to the determination whether an employee is exempt within the meaning of 29 C.F.R. Part 541.

(b) For an employee paid in accordance with the fluctuating workweek method of payment for overtime (see 29 C.F.R. §778.114), the employer, during the period in which intermittent or reduced schedule FMLA leave is scheduled to be taken, may compensate an employee on an hourly basis and pay only for the hours the employee works, including time and one-half the employee's regular rate for overtime hours. The change to payment on an hourly basis would include the entire period during which the employee is taking intermittent leave, including weeks in which no leave is taken. The hourly rate shall be determined by dividing the employee’s weekly salary by the employee’s normal or average schedule of hours worked during weeks in which FMLA leave is not being taken. If an employer chooses to follow this exception from the fluctuating workweek method of payment, the employer must do so uniformly, with respect to all employees paid on a fluctuating workweek basis for whom FMLA leave is taken on an intermittent or reduced leave schedule basis. If an employer does not elect to convert the employee's compensation to hourly pay, no deduction may be taken for FMLA leave absences. Once the need for intermittent or reduced scheduled leave is over, the employee may be restored to payment on a fluctuating work week basis.

(c) This special exception to the “salary basis” requirements of the FLSA exemption or fluctuating workweek payment requirements applies only to employees of covered employers who are eligible for FMLA leave, and to leave which qualifies as (one of the four types of) FMLA leave. Hourly or other deductions which are not in accordance with 29 C.F.R. Part 541 or 29 C.F.R. §778.114 may not be taken, for example, from the salary of an employee who works for an employer with fewer than 50 employees, or where the employee has not worked long enough to be eligible for FMLA leave without potentially affecting the employee's eligibility for exemption. Nor may deductions which are not permitted by 29 C.F.R. Part 541 or 29 C.F.R. §778.114 be taken from such an employee’s salary for any leave which does not qualify as FMLA leave, for example, deductions from an employee’s pay for leave required under State law or under an employer's policy or practice for a reason which does not qualify as FMLA leave, e.g., leave to care for a grandparent or for a medical condition which does not qualify as a serious health condition; or for leave which is more generous than provided by FMLA, such as leave in excess of 12 weeks in a year. Employers may comply with State law or the employer's own policy/practice under these circumstances and maintain the employee's eligibility for exemption or for the fluctuating workweek method of pay by not taking hourly deductions from the employee's pay, in accordance with FLSA requirements, or may take such deductions, treating the employee as an “hourly” employee and pay overtime premium pay for hours worked over 40 in a workweek. Therefore, care should be taken when making deductions from an exempt employee’s weekly salary due to intermittent leave under the FMLA, whether in partial day or whole day increments. For, in the event that an exempt employee is docked for a non-FMLA reason (or is not otherwise protected by the FMLA), the employer risks losing the exempt status of not only the employee, but all employees in the same job classification working for the same managers responsible for the actual improper deductions. 29 C.F.R. §541.603(b).

E. Bonuses
The two most common types of bonuses in the workplace are the occurrence bonus and the production bonus. Occurrence bonuses contemplate the absence of an occurrence and do not require the performance of the employee, such as bonuses for perfect attendance and safety. An employee may not be disqualified from an occurrence type bonus for the taking of FMLA leave. On the other hand, a production bonus is calculated based on hours worked or weekly or monthly earnings. For a production-type bonus, the employer pay prorate the bonus to be paid to the employee for any lost production caused by the taking of FMLA leave. Sommer v. Vanguard Group, 461 F.3d 397 [11 WH Cases2d (BNA) 1396] (3d Cir. 2006) (holding that the employer’s partnership plan was a bonus program designed to reward employee production and may be prorated to account for the hours not worked by employees who took FMLA leave).

F. Continuation of Benefits
During FMLA leave, the employer must maintain the employee’s coverage under group health insurance plans on the same basis as coverage would have been provided if the employee were not on leave. 29 C.F.R. §§825.209-825.213. If an employer provides new health care benefits or changes such benefits while an employee is on FMLA leave, the employee is entitled to the new and changed health benefits to the same extent as if the employee were not on leave.

If employees pay for all or part of the health care coverage, an employee may choose not to maintain health coverage during FMLA leave. However, when an employee returns from leave, the employee is entitled to be reinstated to coverage on the same terms as prior to taking leave, without any qualifying period, physical examination, exclusion of pre-existing conditions, etc.

An employee will be required to continue to pay any portion of plan premiums which had been paid by the employee prior to FMLA leave. If the FMLA leave is substituted for paid leave, the employee’s share of premiums must be paid by the same method normally used during any paid leave period, e.g., payroll deduction. An employer may collect payments or co-payments from the employee during unpaid FMLA leave either directly or require the employee to pay the insurance carrier (no additional charge may be added to the employee’s premium payment for administrative expenses).

Employers must provide employees with advance written notice of the terms and conditions under which the payments are to be made. An employer’s obligation to continue health insurance coverage ceases if an employee’s premium payment is more than 30 days late. An employer must give an employee written notice at least 15 days before coverage is to be ceased.

If coverage lapses because an employee has not made required premium payments, the employer must still restore the employee to equivalent coverage/benefits upon the employee’s return from FMLA leave. Many employers, therefore, continue to make the premiums payments on behalf of the employee to insure that coverage does not lapse.

Except as required under COBRA, an employer’s obligation to maintain health benefits under FMLA ceases if and when an employee informs the employer of his intent not to return from leave; if the employee fails to return from leave and thereby terminates employment; or if the employee uses up all of his FMLA leave entitlement. In addition, an employer may recover the employee’s share of any premium payments made by the employer on behalf of the employee during FMLA leave and also recover both the employer’s share and the employee’s share of premiums paid if the employee fails to return to work after the FMLA leave unless the reason the employee does not return is because of the continuation, recurrence or onset of a serious health condition or other circumstances beyond the employee’s control.

A dental plan provided by an employer generally must be continued during FMLA leave except when all of the following are present:
1. the employer makes no contribution to the dental plan;
2. employee participation is voluntary;
3. the employer only advertises the program and collects premiums through payroll deductions;
4. the employer receives no payments beyond administrative costs; and
5. premiums do not change in the event the employment relationship is terminated. DOL Op. Ltr., FMLA 2006-6-A (Oct. 5, 2006).

Other Benefits (Other than Group Health)
Employers may, but are not required to, maintain other employee benefits (e.g., group life, disability insurance) during unpaid FMLA leave. Since employers are required to restore such other benefits to employees returning from FMLA leave, employers must ensure that they are able to meet this responsibility in the event premiums are not paid during unpaid FMLA leave and coverage lapses.

In Chubb v. City of Omaha, 424 F.3d 831 [10 WH Cases2d (BNA) 1601] (8th Cir. 2005), the employee had the option of using paid sick leave or paid annual leave during his FMLA leave of absence. The employee voluntarily chose to use his paid sick leave. When the employee did not receive a bonus that was given to employees who did not use more than 40 hours of sick leave per year, he filed suit claiming discrimination. The court held that since the officer had the option of taking either annual leave or sick leave, he voluntarily forfeited the leave bonus by choosing to use the sick leave.

G. Medical Certification Requirements and Return to Work Certificates
An employer may require certification from the health care provider to verify the employee’s or the family member’s serious health condition, provided the employer has given notice of such requirement. 29 C.F.R. §§825.305, 825.306, 825.307. The FMLA regulations limit the type of medical information an employer may request. Generally, the employer must allow the employee at least 15 calendar days to provide the medical certification after the employer’s request. Employers must accompany any certification request with advice to an employee of the anticipated consequences of the employee’s failure to provide certification.

If an employer has reason to doubt the validity of a medical certification, it may require a second opinion, at the employer’s expense, by a health care provider selected by the employer but who is not employed on a regular basis by the employer. In the event of a difference of opinion, a third health care provider opinion, which is final and binding, may be required at the employer’s expense. This third health care provider must be jointly designated by the employer and the employee.

29 C.F.R. §825.307 – Questioning the adequacy of a Medical Certification
(a) Clarification and authentication. If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies as set forth in Sec. 825.305(c). To make such contact, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official. Under no circumstances, however, may the employee's direct supervisor contact the employee's health care provider. For purposes of these regulations, ``authentication'' means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document; no additional medical information may be requested. ``Clarification'' means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask health care providers for additional information beyond that required by the certification form. The requirements of the Health Insurance Portability and Accountability Act (``HIPAA'') Privacy Rule (see 45 CFR parts 160 and 164), which governs the privacy of individually-identifiable health information created or held by HIPAA-covered entities, must be satisfied when individually-identifiable health information of an employee is shared with an employer by a HIPAA-covered health care provider. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. See Sec. 825.305(d). It is the employee's responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.

(b) Second opinion. (1) An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits. If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies. In addition, the consequences set forth in Sec. 825.305(d) will apply if the employee or the employee's family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition at issue if requested by the health care provider designated to provide a second opinion in order to render a sufficient and complete second opinion.

(2) The employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the employer. The employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited (e.g., a rural area where no more than one or two doctors practice in the relevant specialty in the vicinity).

(c) Third opinion. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be designated or approved jointly by the employer and the employee. The employer and the employee must each act in good faith to attempt to reach agreement on whom to select for the third opinion provider. If the employer does not attempt in good faith to reach agreement, the employer will be bound by the first certification. If the employee does not attempt in good faith to reach agreement, the employee will be bound by the second certification. For example, an employee who refuses to agree to see a doctor in the specialty in question may be failing to act in good faith. On the other hand, an employer that refuses to agree to any doctor on a list of specialists in the appropriate field provided by the employee and whom the employee has not previously consulted may be failing to act in good faith. In addition, the consequences set forth in Sec. 825.305(d) will apply if the employee or the employee's family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition at issue if requested by the health care provider designated to provide a third opinion in order to render a sufficient and complete third opinion.

(d) Copies of opinions. The employer is required to provide the employee with a copy of the second and third medical opinions, where applicable, upon request by the employee. Requested copies are to be provided within five business days unless extenuating circumstances prevent such action.

(e) Travel expenses. If the employer requires the employee to obtain either a second or third opinion the employer must reimburse an employee or family member for any reasonable ``out of pocket'' travel expenses incurred to obtain the second and third medical opinions. The employer may not require the employee or family member to travel outside normal commuting distance for purposes of obtaining the second or third medical opinions except in very unusual circumstances.

(f) Medical certification abroad. In circumstances in which the employee or a family member is visiting in another country, or a family member resides in another country, and a serious health condition develops, the employer shall accept a medical certification as well as second and third opinions from a health care provider who practices in that country. Where a certification by a foreign health care provider is in a language other than English, the employee must provide the employer with a written translation of the certification upon request.

Pursuant to §825.305(d), an employer must advise an employee of an incomplete certification and give the employee an opportunity to correct any defect(s). Some courts have interpreted this Regulation to mean that an employer is obligated to allow an employee the opportunity to correct the inadequate certification. Other courts, however, hold that an employer’s attempts to obtain an adequate certification need only be reasonable. Davis v. Henderson, 238 F.3d 420 (6th Cir. 2000). In Rogers v. Bell Helicopter Textron, Inc., 6 WH Cases2d 1534 (N.D. Tex. 2000), aff’d without reported decision, 252 F.3d 436 (5th Cir. 2001), an employee who provided a late medical certificate from his doctor that failed to certify a serious health condition was held not entitled to FMLA leave.

Employers may request medical recertification on any reasonable interval but generally not more often than every 30 days unless the employee requests an extension of leave, the circumstances described in the original certification have changed significantly, or the employer receives information that casts doubt upon the continuing validity of the certification.

The FMLA allows an employer to request recertification every 30 days for pregnancy, chronic or permanent conditions in cases where no minimum duration of incapacity is specified. DOL Op. Ltr, FMLA 2004-2-A, 2004 WL 2146933 (May 25, 2004). Such recertification must be requested in connection with an absence. Id. If circumstances have changed significantly or if doubt has been cast on the continuing validity of the certification, recertification may be requested more frequently than every 30 days. Id. A pattern of Monday/Friday absences can cast doubt upon the employee’s stated reason for the absence, provided there is no evidence of medical reasons for the timing of absences. Id. The employer may ask the doctor as part of the certification/recertification process if this pattern of absences is consistent with the employee’s health condition. Id.

An employer may have a uniformly applied practice or policy that requires employees to obtain return-to-work certificates from their health care providers, certifying that the employees are able to return to work. 29 C.F.R. §825.312. An employer may not, however, require a return-to-work certificate from an employee returning from intermittent leave. 29 C.F.R. §825.312(f).

Written notification for the return-to-work certificate and the consequences for failing to provide such certificates should be set forth in the employer’s FMLA policy and the response to the request for FMLA leave form. An employer may only obtain a return-to-work certification with regard to the particular health condition that was the basis for the FMLA leave. 29 C.F.R. §825.312. Such return-to-work certificates are at the employee’s expense. 29 C.F.R. §825.312.

If an employee fails to provide a return-to-work certificate timely, his/her reinstatement may be delayed until the certificate is received. If one is never provided by the employee, he/she may be terminated in accordance with the employer’s policies. 29 C.F.R. §825.312.

Under the FMLA, an employer may only require a return-to-work certificate from a health care provider, and may not request a medical examination. If the employer requires a medical examination, it can only do so if the employee has a disability under the Americans with Disabilities Act and the medical examination is job related and consistent with business necessity.

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