Justin S. Gilbert, Author at Gilbert McWherter Scott Bobbitt PLC

FMLA – A Battle of the Forms Just to Get Back to Work

Ah, the FMLA—and all those dang forms. Many times, the battle of the forms concerns granting the leave. But, as the Firing Squad addresses here, it may also involve a battle to return to work after a leave is granted.

Let’s say an employee, “Mike,” asks for three weeks of FMLA to get a knee replacement. Mike’s employer, “World’s Best Sausages,” (WBS) requires Mike’s doctor to submit an FMLA certification detailing the nature of Mike’s leave and the anticipated ending date. Mike’s doctor completes this certification within fifteen (15) days, giving both a beginning and ending date. WBS then grants the three week FMLA leave. So far, so good, right?

At the end of the three weeks, right on time, Mike shows up at work, ready to go with his new knee. But instead of running the sausage pump, his employer says, “Um, Mike, where’s your doctor’s clearance?” (Sometimes called a Fitness For Duty form or a Return to Work slip).

Mike doesn’t have one. Why would he? He returned on the exact date specified on the medical certification. At this point, can WBS insist Mike get a clearance from his doctor? Worse yet, can it fire him for not already having one?

Well, it depends upon what WBS said in its own forms. Often, an employer forgets that it, too, has very detailed notice obligations. This includes posting FMLA rights in conspicuous places, as well as putting FMLA rights and obligations in the company handbook. 29 C.F.R. §825.300(a). And, once an employer receives notice of a potential FMLA leave, the employer must provide a written notice detailing the expectations and obligations of the employee. 29 C.F.R. §825.300(c). This is the eligibility notice. Finally, if the employer grants the leave, it must do so in writing and tell the employee, among other things, whether a fitness for duty certification is required to return to work. 29 C.F.R. §825.300(d). This is the designation notice.

So, back to the designation form we go. Did WBS check the box telling Mike that he must present a fitness for duty form before returning to work? If so, WBS can require him to return to his doctor before coming back to work. And, though it would be sinister indeed, WBS might even be within its rights to terminate Mike for not having such form already. By contrast, if WBS failed to notify Mike of this obligation, it may not fire him for not doing so already.

Note: This example concerns a continuous FMLA leave. Stricter rules apply to the employer where the employee is coming back from an intermittent leave, as opposed to a continuous leave. 29 C.F.R. 825.312(f).

“Failed Drug Tests” – Employer Defense or Employee Right of Action Under ADAAA?

The Firing Squad gets lots of questions about terminations for a “failed drug test.” This area is very tricky, for both employers and employees. How so? Because a “failed drug test” can be the result of a number of very different things. The employee may have failed because he is a casual illegal drug user. Or, the employee may be addicted to illegal drugs. On the other hand, failing a drug test can also be caused by the employee taking an entirely valid prescription medication for an impairment—the so-called “false positive.”

The Americans with Disabilities Act, with amendments (ADAAA), seeks to walk this fine line. On the one hand, it does not protect current casual drug use, or current illegal drug use. But on the other hand, it does protect persons who take a prescription medication for an impairment which causes a false positive. 42 U.S.C. §12114(b).

So, if an employee believes his “failed drug test” is due to taking a prescription medication for an impairment, what should he/she do? Our advice to the employee would be: Tell the employer that the “failed drug test” was caused by prescription medication. If possible, back it up with a note from the doctor confirming that the prescription medication can indeed result in a false positive. If the employer utilizes a medical review officer (MRO), make the same disclosure to the MRO. By disclosing the valid prescription medication, the employer will know there is an underlying “impairment,” as opposed to, say,casual drug use or illegal drug addiction. “Impairment” (not necessarily diagnosis) is now the touchstone for proving “disability” under the “regarded as” prong of the ADAAA. We told you this was tricky, right? Thus, the employee’s disclosure of prescription medication for an impairment will result in the protection intended by 42 U.S.C. §12114(b).