Over the years, one of my favorite employment law blogs has been Jeff Nowak’s FMLA Insights. He really takes a deep dive into the subject and I’ve had the opportunity over the years to exchange ideas with Jeff.
Recently, he alerted me to a new federal court decision in Connecticut that may have a significant impact for employers struggling with FMLA claims.
The TL;DR note is that the issue he tackles is whether an employer can ask for more information from a medical specialist rather than some vague notes from the primary care physician filling out a FMLA certification form. In some circumstances, the answer is now “yes”.
The court was asked to look at two issues:
First on the initial FMLA certification — was the employer justified in asking for more specific information from a specialist? The court said that because the physician referenced a review from a psychologist, the employer was justified in following up with the specialist to clear up confusion that the physician’s notes brought up.
Second, when the employee wanted to come back to work, the employer was justified in delaying her return to get a more specific fitness for duty certification. As Jeff notes: A fitness-for-duty certification can seek two things: “1) Confirm that the employee is able to resume work; and 2)Specifically address the employee’s ability to perform the essential functions of the employee’s job.” A vague note that the employee could return to work was not enough, the court said.
Rather “the employer has the right to insist that the health care provider review the job description for the position and confirm that the employee can perform those job duties.”
The decision is a big win for employers in Connecticut who struggle with FMLA notes that are vague and gives some teeth to the notion that employers can push back. This is particularly true, I sense, in situations where employees provide a note that they need leave for “job stress”. Employers — in consulting with employment counsel — should consider seeking more information in response to ambiguity when it comes to FMLA certifications or return to work notes.
I thank Jeff for his tip to this important case.