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Taxing Day, Part II – FMLA, ADA, Second Opinions, and Fitness for Duty Exams

April 22, 2014

By Michael G. McClory

Today’s post addresses an issue raised in the (real) mailbag and looks back at last week’s Taxing Day - No Family Leave to Care for “Uncle Sam” post. As you may recall, in that post I replied to a question from fictional restaurant operations manager Carrie Over who asked a question about a sous chef named Skip who had given “taking care of Uncle Sam” as his reason to miss four days of work. When Skip returned to the workplace he brought a medical note from his doctor indicating that Skip has a diagnosed anxiety disorder, that Tax Day had triggered an anxiety attack, and that he had a delusion that ‘Uncle Sam’ was a real person.

The Bullard Edge’s response to Carrie focused on family leave under the federal Family and Medical Leave Act (FMLA) and Oregon’s Family Leave Act (OFLA). I let Carrie know that both FMLA and OFLA allow an employee to take up to 12 weeks of family leave in connection with his/her own serious health condition or a family member’s serious health condition (uncle is not a statutory family member). Because the medical note might relate to Skip’s own serious health condition, I suggested that Carrie follow her company’s FMLA/OFLA policy in all respects. I did not include any direction for Carrie on what steps she would take in following the FMLA/OFLA policy.

A reader in Cleveland commented on this and said that she “recommend[s] a second opinion examination] allowed under the FMLA.” Responding to this excellent comment, I will briefly address second opinions and the related (but different) issue of fitness for duty exams. The former concerns the taking of leave and the latter concerns working / returning to work.

Second opinions: Both FMLA and OFLA generally permit an employer to request medical verification of the need for leave. (There are exceptions under OFLA related to parental and sick child leave.) Both also generally permit the employer to seek a second opinion, at the employer’s expense, where the employer has reason to doubt the validity of a medical certification; leave may not be delayed during the second opinion process. Where the first and second opinions conflict, the employer may seek a third opinion, again at its own expense. The third opinion is binding on the employer and employee.

Regarding the situation involving Skip, the reader comment fills in facts suggested by but not included in the original hypothetical. The reader assumes that Carrie follows the FMLA/OFLA policy, requests that Skip provide medical certification of the need for leave, and receives a certification that she doubts (and, admittedly, a four-day delusion related to a tax deadline does seem a bit contrived). With this in mind, the reader correctly suggests that a second opinion would be appropriate.

Fitness for duty exams: These do not relate to the taking of leave. As the name implies, a fitness for duty exam concerns working or being on the job. Most commonly, under the ADA and Oregon law (and the law in many states), an employer may seek fitness for duty information in connection with (a) an employee request for reasonable accommodation on the job or (b) an employer concern about an employee’s ability to perform the duties of a position or to perform them safely. The fitness for duty information sought should be current and relevant to the issue (accommodation request or fitness for duty concern).

There sometimes is confusion at the handoff point between the FMLA and the ADA (and parallel state laws). Under FMLA/OFLA an employer may require a medical release to return from leave. These laws do not permit an employer to seek second or third opinions on the release. With a proper release, the employer’s obligation is to reinstate the employee from leave.

On reinstatement, it is conceivable that an employer may have an articulable reasonable concern about the employee’s fitness for work. Consider Skip. If we assume that his doctor certified that he had a need for leave due to anxiety and delusions and that his doctor released him to return to work after only four days, it is possible that the restaurant may have lingering concern about his ability to do the job and to perform his duties safely. In that event, both the ADA and Oregon law allow for reinstatement followed by a fitness for duty inquiry.

ADA: The EEOC, which enforces the ADA, states that an employer may make disability-related inquiries or require a medical examination when an employee who has been on leave for a medical condition seeks to return to work if the employer “has a reasonable belief that an employee's present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition”. In that event, any inquiry or examination “must be limited in scope to what is needed to make an assessment of the employee's ability to work.”

Oregon law: BOLI, which enforces OFLA and Oregon’s disability discrimination law, agrees.  “If an employee´s family leave entitlement has been exhausted for a serious health condition that is also a disability, the reasonable accommodation obligation still remains. An example would be an employee who suffered permanent injuries to her back and, although able to return to work, needed special office furniture or equipment to allow her to perform the job after returning from family leave. Additional unpaid leave or an adjusted work schedule to accommodate therapy treatments may also be reasonable accommodations under the disability laws. The employer may be required to engage in a meaningful interactive process with the returning employee to identify potential accommodations.”


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