Thursday, August 28, 2014

3d Cir. on FMLA Right to Return to Work

Yesterday, the Third Circuit Court of Appeals (jurisdiction covering Pennsylvania) issued a noteworthy precedential FMLA opinion in Budhun v. Reading Hosp. & Med. Ctr. (opinion here).

The fact pattern is long and convoluted but I'll try to hit the key points:
  • Employee broke a bone in her hand (fifth metacarpal) and went out on FMLA leave;
  • She got a note from her doctor that she could return to work with no restrictions, but had to wear a splint;
  • The employee estimated that 60% of her work was typing, and she indicated that she could work with the splint, "but not fast";
  • The employer responded that she needed to be able to work at full capacity to return, so the employee left.
The Third Circuit has never addressed an employee's right to return to work under the FMLA before - so this case is kind of a big deal. Here's some of the analysis:
Although we have never had occasion to address specifically what constitutes invocation of one’s right to return to work, Budhun has adduced enough evidence such that a reasonable jury could find that she did so here. Her “fitness-for-duty” certification clearly stated that she could return to work with “no restrictions.” Prior to permitting an employee to return to work, an employer may request that an employee provide such a certification, see id. § 825.312, as Reading required of Budhun here. In it, an employee’s healthcare provider must merely certify that the employee is able to resume work. Id. § 825.312(b); see also Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1003-04 (6th Cir. 2005) (interpreting a similar version of the regulation to require only a statement that the employee can return to work, nothing more). An employer may require that this certification address the employee’s ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave. 29 C.F.R. § 825.312(b). It is undisputed that Reading did not provide Budhun a list of essential functions for her to present to Dr. Battista. Because Reading did not provide Budhun with such a list, Dr. Battista’s fitness-for-duty certification was based only on the description of the job that Budhun would have supplied him . . . . 
The regulations contemplate just this kind of situation. They state that if the employer requires clarification of the fitness-for-duty certification, the employer can contact the employee’s health care provider (as long as the employee gives the employer permission to do so, which Budhun did here). Id. § 825.312(b). However, the “employer may not delay the employee’s return to work while contact with the health care provider is being made.” Id. Instead of following the regulations, Spinka (who is not a doctor) seemingly overruled Dr. Battista’s conclusion (albeit reached without an employer-provided list of essential job functions) by telling Budhun that if she was “truly unrestricted,” she “would have full use of all of [her] digits.” App. 267. The record is 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.
Annnnd so the employer lost the summary judgment that the district court had granted. This case has a lot of twists and turns that are just too in-depth for a blog post. If you practice employment law (specifically FMLA and ADA) then give the whole opinion a read.

One other interesting tidbit - the broken hand was not a disability. Even under the ADAAA's "regarded as" analysis, the injury was both "transitory and minor" and therefore not a disability.