The Employer’s Right
Asking for FMLA leave can be as simple as telling one’s supervisor of the need; for instance, you may have upcoming surgery for which you require recovery time, or perhaps a family member for whom you need to provide care does. The Act requires that such requests, if foreseeable, be made 30 days in advance, or if sudden or not foreseeable, then as quickly as possible. Employers, however, do have certification rights to verify your claim.
Employers can request medical certification from a health care provider, and they can later request periodic recertification, but such requests can only be made every 30 days unless fraud is suspected. In recertification cases, however, the employer must cover the cost of the health care provider’s verification.
If an employer harbors suspicions about the initial or subsequent verifications submitted, they can request a second opinion at a medical practitioner’s office of their choosing, but they must bear all the costs.
Job Restoration Rights
Under the FMLA
Under the FMLA, employees returning from FMLA leave must be restored to their previous positions or an equivalent one with the same pay, benefits, and terms and conditions of employment. Your job rights are protected, but with one caveat.
If an employee is returning from a serious illness or injury, the employer may request a fitness-for-duty certification from the employee’s health care provider. If the employee does not provide this certification, he cannot be reinstated. Additionally, if an employee is reinstated but the employer deems that he presents “reasonable safety concerns,” an additional fitness-for-duty certification can be requested every 30 days.
This fitness-for-duty provision does not apply if the employee is returning from parental leave owing to the birth or adoption of a child, or if they are returning from caring for a family member.
The restoration process, of course, presents another area where employers may try to skirt the FMLA’s provisions. Employees returning from FMLA leave may suddenly find themselves in positions of less responsibility, which then can be cause for a retaliation claim.