Question:

I have an employee that I have given FMLA paperwork to that is going through mental issues. She gave her new Therapist the paperwork and her Dr hand wrote on the back of the FMLA paperwork that she could not fill out the paperwork at this time. Is that employee on FMLA? I have nothing stating any reason for it now. Other then a hand written note saying she will not be filling it out at this time.

Answer:

Generally, the Family and Medical Leave Act (“FMLA”) permits employers to require employees to obtain a completed certification from the worker’s health care provider to substantiate the need for FMLA leave.  Additionally, it’s important to remember that the  Americans with Disabilities Act (“ADA”) may apply to this situation.  As it relates to the ADA, generally employers may request a doctor’s note as evidence of the need for an employee’s leave.

We will take a quick look at the applicable provisions of the FMLA and the ADA below.

FMLA

Under the FMLA, employers can ask for a doctor’s note from a healthcare provider when the employee first requests leave for a qualifying reason. The FMLA has a specific certification process and timeline that may be found in the FMLA’s regulations. In general, employees are responsible for providing complete and sufficient information, generally within 15 days, to their employer.

Additionally, when the employee is ready to return to work after FMLA leave, employers may have a policy or practice in place that requires a return-to-work certification or “fitness-for-duty” certification, there is no standard form, the employer can use their own, but only if the employee has been out of work for his own medical condition. If this is an established practice, employers must provide notice of the fitness-for-duty requirement on the FMLA Designation Notice. It is important that this be uniformly applied to all similarly situated employees.

ADA

Under the ADA, an employer can ask for medical proof when the employee is requesting an accommodation or if the employer has an objective basis to believe the employee cannot perform the essential functions of his or her job because of an impairment. Such medical documentation does not have to include the specifics of the employee’s impairment.  Instead, it is considered sufficient if the documentation explains the nature, severity, and duration of the impairment; the activities that are limited; the extent of the employee’s ability to do his or her job; and why reasonable accommodations are needed.

In cases where an employee requests an ADA accommodation upon returning from FMLA, employers may ask for the fitness-for-duty certification as part of the interactive process for coming up with a reasonable job accommodation with the employee.

In any case, without providing the required FMLA certification, it is not likely that the employee would automatically be out on approved FMLA leave.