Employee’s Certification of Fitness to Return to Work Without Restrictions Triggers Employer’s Duty of Reinstatement: Third Circuit | Practical Law

Employee’s Certification of Fitness to Return to Work Without Restrictions Triggers Employer’s Duty of Reinstatement: Third Circuit | Practical Law

In Budhun v. Reading Hospital and Medical Center, the US Court of Appeals for the Third Circuit reversed the district court's grant of summary judgment for the employer on Family and Medical Leave Act of 1993 (FMLA) interference and retaliation claims, finding that an employee's certification of fitness to return to work "without restrictions" was sufficient to trigger the employer's duty to reinstate the employee, and the employer's failure to provide a list of essential job functions to a health care provider precludes an employer from claiming an employee cannot perform an essential function. The Third Circuit also found that replacing an employee on FMLA leave is an adverse employment action that could trigger a retaliation claim.

Employee’s Certification of Fitness to Return to Work Without Restrictions Triggers Employer’s Duty of Reinstatement: Third Circuit

by Practical Law Labor & Employment
Published on 17 Sep 2014 • USA (National/Federal)
In Budhun v. Reading Hospital and Medical Center, the US Court of Appeals for the Third Circuit reversed the district court's grant of summary judgment for the employer on Family and Medical Leave Act of 1993 (FMLA) interference and retaliation claims, finding that an employee's certification of fitness to return to work "without restrictions" was sufficient to trigger the employer's duty to reinstate the employee, and the employer's failure to provide a list of essential job functions to a health care provider precludes an employer from claiming an employee cannot perform an essential function. The Third Circuit also found that replacing an employee on FMLA leave is an adverse employment action that could trigger a retaliation claim.
On August 27, 2014, in Budhun v. Reading Hospital and Medical Center, the US Court of Appeals for the Third Circuit reversed the district court's grant of summary judgment for the employer on FMLA interference and retaliation claims, finding that an employee's certification of fitness to return to work "without restrictions" was sufficient to trigger the employer's duty to reinstate the employee and the employer's failure to provide a list of essential job functions to a health care provider precludes an employer from claiming an employee cannot perform an essential function. The Third Circuit also found that replacing an employee on FMLA leave is an adverse employment action that could trigger a retaliation claim. (11-4625, (3d Cir. Aug. 27, 2014).)

Background

In 2008, Budhun was hired as a credentialing assistant for Reading Hospital and Medical Center (Reading). The written job description for the position:
  • Required Budhun to generate and maintain records, and to demonstrate "efficiency and accuracy in the credentialing" of network healthcare providers.
  • Noted that the job required preparing and mailing credentialing packets, processing and verifying credentialing information, performing data entry, scanning, and similar tasks.
Reading provides FMLA leave under 29 U.S.C. § 2691. Reading's policy requires an employee to:
  • Submit a leave certification from a healthcare professional before it approves any FMLA leave.
  • Submit a "fitness-for-duty" certification confirming that the employee can work "without restriction" before returning to work.
  • Contact Reading's human resources department at the end of the leave (otherwise Reading's policy states it will consider the employee to have voluntarily resigned).
Budhun broke her hand on July 30, 2010 (in a non-work incident) and on August 2 returned to work with a metal splint. That morning, she received an email from Reading human resources:
  • Noting that Budhun's supervisor had informed them of her injury preventing her from working full duty.
  • Providing Budhun with FMLA leave forms.
That day, Budhun left work to see a physician who taped fingers on her hand together. On August 12, Budhun emailed human resources some of the FMLA paperwork they had provided to her, with a portion of the hospital's leave of absence form and a note from her doctor, dated August 10. The letter stated that she could return to work on August 16 and that she had "No restrictions in splint." In the email, Budhun clearly stated that she was going to return on August 16. Budhun returned to work the morning of August 16 and again emailed human resources, attaching the other portion of the hospital's leave of absence form, stating an expected return to work date of August 16. That day, Budhun and human resources then communicated as follows:
  • Budhun stated that she still had a splint on her right hand, that she could "type slowly and write a little bit, but not as fast as I used to.... I could work but not fast."
  • Human resources informed Budhun that because her return to work note states "no restrictions", she should be at full speed in her tasks, and if she is unable to perform at full speed, she should contact her physician and ask him to excuse her from work until she can.
  • Budhun responded stating that she could "use my index and thumb finger of that hand so I can't go at full speed, but I could work."
  • Human resources replied and informed Budhun that she needed to perform at the "same capacity" as she did before, which required her to have full use of all her digits.
The following events then occurred:
  • Budhun, under the impression that Reading would not allow her to work, left and returned to the physician's office.
  • In the afternoon on August 16, the physician's office signed, dated and faxed Budhun's completed FMLA leave certification form to Reading, checking "yes" next to the question asking whether Budhun was unable to perform "any of his/her job functions." When asked in the form which job functions Budhun could not perform, the physician simply wrote "out of work until 08/16/10" and estimated the period of incapacity as "08/02/10-08/16/10." However, a note on the last page of the physician's fax requested that Reading excuse Budhun from work until reevaluation on September 8.
  • The next day, Reading approved FMLA leave for Budhun from August 2 through September 8.
  • Budhun's physician evaluated her again on September 8, prescribed occupational therapy for her hand, and scheduled a follow-up appointment for November 9.
  • Budhun emailed human resources on September 8, stating then that the doctor would release her to work as soon as she could move her fingers.
  • Budhun faxed human resources a doctor's note dated September 10 stating that she would be out of work until her next doctor's appointment in November.
  • Human resources extended Budhun's FMLA leave until September 23 (at which time her FMLA leave was exhausted), and approved non-FMLA leave through November 9.
  • When Budhun did not return by the end of her FMLA leave, BHP offered the position to a replacement on September 25, who accepted it.
  • On October 4, human resources called Budhun to:
    • inform her that they had replaced her; and
    • tell her that she would be terminated if her doctor released her to work before she found another position at the hospital (even though she would have to apply as an outsider).
  • On October 6, Budhun's supervisor asked her to come pick up her belongings and turn in her identification badge and keys.
  • At the expiration of her leave (on November 9), Budhun did not contact Reading. Therefore Reading considered Budhun to have voluntarily resigned.
On November 19, Budhun sued in district court, alleging FMLA interference and retaliation. Reading moved for summary judgment on both claims. The district court granted the motion, holding that Reading was entitled to summary judgment:
  • On Budhun's interference claim because:
    • "[s]he was never medically cleared to return to work and ... a doctor's note was never provided to defendant;" and
    • Budhun was never entitled to the protections of the FMLA because she claimed that she was fully capable of working when she attempted to return to work on August 16.
  • On Budhun's retaliation claim because Budhun:
    • could not establish a prima facie case as a matter of law;
    • suffered no adverse employment action because she was medically unable to return to work at the conclusion of her FMLA leave; and
    • could not establish any temporal nexus between her termination and her FMLA leave because she was terminated on November 10 (almost two months after she took FMLA leave.)
Budhun appealed to the Third Circuit, arguing that:
  • She produced enough evidence to create a genuine dispute of material fact regarding whether Reading interfered with her right to be restored to her position on August 16, when human resources told her that she needed full use of all ten fingers before she could be reinstated despite the fact that there was no essential function of her job that she could not perform. She claims that this action interfered with her right to be restored to her position.
  • The district court's grant of summary judgment to Reading on her FMLA retaliation claim was in error. Reading retaliated against her for taking FMLA leave when it impermissibly replaced her after her FMLA-protected leave expired.

Outcome

The Third Circuit vacated the district court's judgment as to Budhun's FMLA interference and FMLA retaliation claims, holding that:
  • There is a genuine dispute of material fact precluding summary judgment on Budhun's FMLA interference claim regarding whether:
    • Reading interfered with Budhun's right to return to work on August 16; and
    • Budhun could not perform an essential function of her job.
  • There is a genuine dispute of material fact precluding summary judgment on Budhun's FMLA retaliation claim regarding whether Budhun suffered an adverse employment action when Reading installed a replacement permanently in Budhun's position.
The Third Circuit found that:
  • Reading's argument that Budhun did not really attempt to return to work on August 16 because shortly after arriving, she left and sought a doctor's note requesting leave until September 8, fails because there is a genuine dispute of material fact regarding whether Budhun attempted to invoke her right to return to work on August 16. Budhun informed human resources on August 12 that she intended to return to work on August 16 and provided a doctor's note stating that she could return on that date with no restrictions. When she returned to work on August 16, the information from her treating physician, which she had provided to Reading, indicated that she intended to return to work as of August 16 with no restrictions.
  • Budhun has provided enough evidence that a reasonable jury could find that she did invoke her right to return to work. Her fitness-for-duty certification clearly stated that she could return to work with no restrictions. Reading's failure to provide Budhun a list of essential duties of the job meant that the physician's fitness-for-duty certification was based only on the description of the job that Budhun supplied him.
  • While the FMLA regulations allow an employer that requires clarification of the fitness-for-duty certification to contact the employee's health care provider (as long as the employee gives permission), the employer may not delay the employee's return to work while that contact is made. Reading human resources, instead of following the regulations, overruled the physician's conclusion by telling Budhun that if she was truly unrestricted, she would have full use of all of digits. The record is therefore sufficient to allow a reasonable jury to conclude that Budhun attempted to invoke her right to return to work, and that Reading interfered with it when it told Budhun that she could not.
Even if Budhun actually attempted to return to work on August 16, Reading argues that it is still entitled to summary judgment because it would have sent her home because she could not perform an essential function of her job. The Third Circuit found that:
  • The failure to restore an employee to her position at the conclusion of FMLA leave does not violate the FMLA if the employee remains unable to perform an essential function of the position (29 C.F.R. § 825.216(c)).
  • The FMLA regulations place the burden on a the health care provider to certify whether the employee is unable to perform any essential function of her job (29 C.F.R. § 825.123(a)).
  • Reading could have provided Budhun with a list of her essential job duties, so that the physician could determine if she could perform them, but instead, it unilaterally determined that Budhun could not perform an essential function because she had use of only seven fingers.
  • Although Budhun admitted it was unlikely she could type as fast with seven fingers as with ten, this alone did not mean that she could not perform this essential function. Budhun provided evidence that there was no minimum words per minute requirement in her written job description, she exceeded internal deadlines and was faster than her colleagues who could not type well.
  • Budhun has provided enough evidence to allow a reasonable jury to conclude that she could perform this essential function of her position.
Regarding Budhun's retaliation claim, the Third Circuit found that:
  • After she was replaced, Budhun was no longer free to return to her previous job. Her supervisor expressly told her to turn in her badge and keys, and to pick up her personal belongings. She was not offered another position at the hospital and was ineligible to transfer to another position. Further, she was expressly told that if her doctor cleared her to return to work, she would be formally terminated. Such a complete elimination of responsibility significantly altered her duties and status.
  • The fact that Budhun was not formally terminated and continued to receive benefits from Reading does not mean that Reading's actions were not adverse employment actions.
  • Budhun has produced enough evidence for a reasonable jury to conclude that she suffered an adverse employment action when Reading permanently replaced her.
  • A causal link between Budhun's FMLA leave and any adverse employment action exists because the record demonstrates that Reading decided to replace Budhun before her FMLA leave ended, as early as September 15. Further, the replacement was then offered and accepted the position on September 25, two days after Budhun's FMLA leave ended. Reading human resources attempted to contact Budhun about her replacement starting on September 27, and finally reached her on September 29. Such close temporal proximity qualifies as unusually suggestive timing.

Practical Implications

Employees are advised to ensure that their FMLA leave procedures are up to date and provide clear guidance for employees and health care providers. For example, employers:
  • Should ensure that their fitness for duty certification process is compliant and includes an accurate job description listing essential job duties.
  • Should provide updated essential job functions to a health care provider as soon as possible.
  • Must not require that an employee remain on leave until they are without restrictions. Employers that enforce such a policy improperly bypass the individualized assessment process required under the FMLA.
Employers may enforce a separate fitness for duty exam if they have an objectively reasonable basis for the examination independent of the FMLA leave itself. Employers also should use caution before hiring a permanent replacement for an employee on FMLA leave or shortly after the employee's expected return date to avoid retaliation claims because hiring a replacement may qualify as an adverse employment action.