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Q & A: New FMLA regulations and Workers’ Compensation

Q. “I’ve read about a change in the FMLA regulations regarding light duty. Please explain.”

A. If an employee cannot perform one or more of the essential functions of his or her job, that employee may take FMLA leave even if the employer is willing to provide a light duty or modified job that would allow the employee to continue working. However, if the employee voluntarily opts for light duty work, that employee is not on FMLA leave, nor does he waive any future rights, including the right to job restoration. In the past, an employer could count light duty toward the FMLA entitlement.

Q. “Can I require a fitness-for-duty certification as a condition for returning to work under the new FMLA regulations?”

The final rule makes two changes to the fitness-for-duty certification process. First, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. The employer can provide the health care provider with a list of essential job functions and require that health care provider to certify that the employee can perform these functions. However, if the employer wants the health care provider to consider a list of essential job functions, it must provide them to the employee in the initial rights and obligations notice and specify that the fitness-for-duty certification must address the employee’s ability to perform those essential functions.

Second, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification once every 30 days when the employee takes intermittent or reduced schedule leave. The safety concerns must be based on the serious health condition necessitating the leave.