Does anyone have an FMLA "fitness for duty" clause in a union contract?

[Omaha Steve]

http://webapps.dol.gov/elaws/whd/fmla/12a6.aspx

Fitness-for-Duty Certification

As a condition of restoring an employee whose FMLA leave was due to the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee's health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate in the fitness-for-duty certification process as in the initial certification process and is responsible for any associated costs.

If state or local law or the terms of a collective bargaining agreement govern an employee's return to work, those provisions must be applied. Requirements under the Americans with Disabilities Act (ADA) that any return-to-work physical examination be job-related and consistent with business necessity also apply.

An employer may seek fitness-for-duty certification only with regard to the particular health condition that caused the employee's need for FMLA leave. The certification from the employee's health care provider must certify that the employee is able to resume work. The employer must provide notice of the requirement to provide a fitness-for-duty certification with the designation notice. If the employer has provided a list of the essential functions of the employee's job by no later than with the designation notice, an employer also may require that the certification address those essential functions. (See Employer Notice Requirements and Recordkeeping for more information.)

The employer then may contact the employee's health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Clarification may be requested only for the serious health condition for which FMLA leave was taken. The employer may not delay the employee's return to work while contact with the health care provider is being made. Furthermore, no second or third opinions may be required on a fitness-for-duty certification.

An employer may delay restoration to employment until an employee submits a required fitness-for-duty certification unless the employer has failed to provide the notice required. If an employer provides the notice required, an employee who does not provide a fitness-for-duty certification or request additional FMLA leave is no longer entitled to reinstatement under the FMLA.

An employer is not entitled to a fitness-for-duty certification for each absence taken on an intermittent or reduced leave schedule. However, if reasonable safety concerns exist regarding the employee's ability to perform his or her duties due to the serious health condition for which the employee took such leave, an employer is entitled to a fitness-for-duty certification for such absences up to once every 30 days. "Reasonable safety concerns" means a reasonable belief of significant risk of harm to the employee or others. The employer may not terminate the employment of the employee while awaiting such fitness-for-duty certification for an intermittent or reduced schedule leave absence.

Return to Certifications Overview or Continue to Confirmation of Relationship.

For more information on this aspect of the FMLA, see the FMLA regulations: § 825.312

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