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What Triggers Employer's Duty to Reinstate Under FMLA? Ask a Doctor

By William Peacock, Esq. on September 10, 2014 | Last updated on March 21, 2019

The Family Medical Leave Act (FMLA) is simple: If you're injured, you can take leave and your job is held for you while you recover. Except, the finer points can get a bit tricky. What if an employee can only come back with restrictions? Who makes the judgment call on whether an employee can fulfill her essential duties?

That was the key to Vanessa Budhun's case. She broke a finger, was told by HR that she had to take FMLA leave, and while she was gone, was replaced. The doctor cleared her with "no restrictions in splint," which is kinda-sorta like no restrictions, but with only seven functioning digits. (Bundhun's job requires typing.)

The district court granted summary judgment to the hospital, but the Third Circuit reversed. Why?

Doctor's Call

Budhun's doctor cleared her for a return to work. Though the note seemed to carry caveats, the person who ultimately decided that she was unable to handle her essential duties was an HR representative who made the judgment call via email.

The Third Circuit suggested that the employer could have sent a list of essential duties to the doctor, asking him to confirm that she could handle those duties while her fingers were splinted, but didn't.

Note Triggers Employer's Duty

Doctor's note ---> employer's duty. It's almost as simple as that.

Citing opinions from the Sixth and Seventh Circuit, the Third Circuit set out a few rough guidelines:

  • A doctor's note triggers an employer's duty to reinstate under the FMLA (Sixth Circuit);
  • A doctor's conditional note, setting job-related restrictions (such as 'no heavy lifting') does not trigger such a duty (Seventh Circuit); and
  • A doctor's kinda-sorta note, like the one here, requires the employer to do more than dismiss (via email) an employee's ability to work. Consulting the doctor about the employee's job functions is well advised.

We say "well advised" on that last point, because the court emphasized in a footnote that this is not a hard and fast rule: "We do not reach the issue of whether an employer may ever decline to allow an employee, whose physician has been provided a list of essential functions and whose physician provided a fitness-for-duty certification, from returning to work."

In other words, there may be situations where a doctor clears an employee, unconditionally, after seeing an essential duties list, and yet, the employee can't actually do the work. Still, you have to go through the motions before you give away that person's job.

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