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?”
A.
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. |