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Philadelphia Employment Law Attorneys Discuss Returning to Work Under the FMLA

by Michael McGurrin

One of the main features to the Family Medical Leave Act (”FMLA”) is the return to work provision that requires that an employer return an employee, who has been approved for FMLA, to their original or equivalent position at the end of their leave. The Act entitles an employee to be restored to work if they are able to perform the “essential functions” of their job within the leave time.  The third circuit has recently addressed two of the thorny issues that employers and employees, and likewise courts, have struggled with regard to the FMLA: when or how is the employees request to return to work triggered; and who determines whether an employee is able to perform the essential functions of their job.

Bundin v. Reading Hospital and Medical Center, held that an employer’s duty to reinstate is triggered when the employee submits a statement from their healthcare provider indicating that the employee can return to work.  In addition, it is the employee’s health care provider who determines whether the employee can perform her job functions, not the employer.

In Bundin, the employee held a clerical position that required inputting of data.  She injured her hand which required her to wear a splint.  She applied for and was approved for FMLA.  Shortly thereafter, she provided a note from her doctor that she was able to return to work “without restriction.”

While there were several communications between Bundin and the HR director, the HR director advised Bundin that she could not return to work with a splint on her hand. The splint restricted Bundin to using seven fingers rather than all ten. The employer, in essence, determined that Bundin could not perform the essential functions of her job because the splint prevented her from typing with all ten of her fingers.  However, evidence adduced during discovery indicated that a supervisor and another employee in a similar position utilized the hunt and peck technique using only one finger from each hand.  Significantly, not only did the employer deny Bundin’s request to return to work but they gave her job to someone else.

The first question that the court had to address was whether the employee’s submission of a doctor’s note stating that she could return to work “without restriction” triggered the employer’s obligation to restore the employee to her original position.  The court held that the doctor’s note stating the Claimant could return to work “no restrictions” was sufficient to trigger the employer’s obligation to restore the employee to her job. The court distinguished this from a situation where an employee submitted a note form her physician stating that that employee could return to work with an accommodation.  Under the FMLA the employer has no obligation to make reasonable accommodations for an employee as may be required under the American with Disabilities Act.

The other significant issue addressed in Bundin, is that the court held that it is the treating physician, not the employer, that determines whether an employee is physically capable of returning to work, or more accurately whether the employee can “perform the essential functions of the job.”   Once the return to work obligation is triggered the employer may require a certification from the health care provider that the employee can perform the essential functions of the job. This request for certification may include listing all the essential functions of the job.  The court held that the employer did not provide that opportunity to Bundin.  Instead, the Human Resources Director unilaterally determined that Bundin could not perform the essential functions of her job because she was wearing a splint.  The court held that there was sufficient evidence that a jury could find that the actions of the employer interfered with the employee’s FMLA rights and therefore the matter was remanded so the case could go to trial by jury.

The Bundin case is a victory for Plaintiffs who attempt to invoke their rights under the FMLA.  It helps clarify what actions constitute a request to trigger one’s FMLA return to work rights and importantly, who determines whether the employee can perform the essential functions of her job.

For more information on an employment discrimination manner, please contact Philadelphia discrimination lawyers at Galfand Berger LLP.  Call 1-800-222-USWA (8792) or contact us online

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