Is an employee returning from paid medical leave fit for duty? Companies should be aware of the criteria set out in the Massachusetts Paid Family and Medical Leave regulations regarding what an employer may require of an employee returning from leave regarding fitness-for-duty.

Section 2.11 of the Department of Family and Medical Leave (DFML) regulations allows an employer to seek a fitness-for-duty report from an employee who was out of work for a serious medical condition. The employer may seek a fitness-for-duty report at the close of the medical leave period before the employee returns to work if:

• it has a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to obtain and present certification from their health care provider that the employee is able to resume work.
• the fitness-for-duty report is only for the health condition that caused the employee’s need for leave and the certification from the health care provider certifies that the employee is able to resume work.
• the certification specifically addresses the employee’s ability to perform the essential functions of the job.

To require a fitness-for-duty report, an employer must provide an employee with a list of the essential functions of his/her job (i.e., an up-to-date job description) within 10 business days of the notice to the employer of the approval of leave and must indicate that the certification must address the employee’s ability to perform those essential functions.

Assuming the employer does this, the employee’s health-care provider must certify that the employee can perform the identified essential functions of the job.

If the employer has met its requirement to provide the job description and has a uniformly applied fitness-for duty policy, the employer may:

• delay restoration to employment until an employee submits a required fitness-for-duty certification; or
• deny restoration of employment if employee does not provide a fitness-for-duty certification.

In the case of intermittent leave, the employer is entitled to a fitness-for-duty report once every 30 calendar days if reasonable safety concerns exist regarding the employee’s ability to perform her/his duties, based on the serious health condition for which the employee took leave.

AIM members may discuss this or any other human resources issue by calling the Employer Hotline at 800-470-6277.