Connecticut Administrative Code › Title 31 - Labor › 51rr - Family and Medical Leave for School Paraprofessionals › Section 31-51rr-43 - Fitness-for-duty certification (29 CFR Section 825.312)

Current through July 10, 2024
(a) As
			 a condition of restoring an employee whose FMLA leave was occasioned by the
			 employee's own serious health condition that made the employee unable to
			 perform the employee's job, an employer may have a uniformly-applied policy or
			 practice that requires all similarly-situated employees, such as those in the
			 same occupation and with the same serious health condition, who take leave for
			 such conditions to obtain and present certification from the employee's health
			 care provider that the employee is able to resume work. The employee has the
			 same obligations to participate and cooperate, including providing a complete
			 and sufficient certification or providing sufficient authorization to the
			 health care provider to provide the information directly to the employer, in
			 the fitness-for-duty certification process as in the initial certification
			 process.
(b) An employer may seek a
			 fitness-for-duty certification only with regard to the particular health
			 condition that caused the employee's need for FMLA leave. The certification
			 from the employee's health care provider shall certify that the employee is
			 able to resume work. Additionally, an employer may require that the
			 certification specifically address the employee's ability to perform the
			 essential functions of the employee's job. In order to require such a
			 certification, an employer shall provide an employee with a list of the
			 essential functions of the employee's job no later than with the designation
			 notice required by section
			 31-51rr-31(d) of
			 the Regulations of Connecticut State Agencies, and shall indicate in the
			 designation notice that the certification shall address the employee's ability
			 to perform those essential functions. If the employer satisfies these
			 requirements, the employee's health care provider shall certify that the
			 employee can perform the identified essential functions of his or her job.
			 Following the procedures set forth in section
			 31-51rr-38(a) of
			 the Regulations of Connecticut State Agencies, the employer may contact the
			 employee's health care provider for purposes of clarifying and authenticating
			 the fitness-for-duty certification. Clarification may be requested only for the
			 serious health condition for which FMLA leave was taken. The employer may not
			 delay the employee's return to work while contact with the health care provider
			 is being made. No second or third opinions on a fitness-for-duty certification
			 may be required.
(c) The cost of
			 the certification shall be borne by the employee, and the employee is not
			 entitled to be paid for the time or travel costs spent in acquiring the
			 certification.
(d) The designation
			 notice required in section
			 31-51rr-31(d) of
			 the Regulations of Connecticut State Agencies shall advise the employee if the
			 employer will require a fitness-for-duty certification to return to work and
			 whether that fitness-for-duty certification must address the employee's ability
			 to perform the essential functions of the employee's job.
(e) An employer may delay restoration to
			 employment until an employee submits a required fitness-for-duty certification
			 unless the employer has failed to provide the notice required in subsection (d)
			 of this section. If an employer provides the notice required, an employee who
			 does not provide a fitness-for-duty certification or request additional FMLA
			 leave is no longer entitled to reinstatement under the FMLA.
(f) An employer is not entitled to a
			 certification of fitness to return to duty for each absence taken on an
			 intermittent or reduced leave schedule. However, an employer is entitled to a
			 certification of fitness to return to duty for such absences up to once every
			 thirty (30) days if reasonable safety concerns exist regarding the employee's
			 ability to perform his or her duties, based on the serious health condition for
			 which the employee took such leave. If an employer chooses to require a
			 fitness-for-duty certification under such circumstances, the employer shall
			 inform the employee at the same time it issues the designation notice that for
			 each subsequent instance of intermittent or reduced schedule leave, the
			 employee will be required to submit a fitness-for-duty certification unless one
			 has already been submitted within the past thirty (30) days. Alternatively, an
			 employer can set a different interval for requiring a fitness-for-duty
			 certification as long as it does not exceed once every thirty (30) days and as
			 long as the employer advises the employee of the requirement in advance of the
			 employee taking the intermittent or reduced schedule leave. The employer may
			 not terminate the employment of the employee while awaiting such a
			 certification of fitness to return to duty for an intermittent or reduced
			 schedule leave absence. Reasonable safety concerns means a reasonable belief of
			 significant risk of harm to the individual employee or others. In determining
			 whether reasonable safety concerns exist, an employer should consider the
			 nature and severity of the potential harm and the likelihood that potential
			 harm will occur.
(g) If State or
			 local law or the terms of a collective bargaining agreement govern an
			 employee's return to work, those provisions shall be applied.
(h) Requirements under the ADA apply. After
			 an employee returns from FMLA leave, the ADA requires any medical examination
			 at an employer's expense by the employer's health care provider be job-related
			 and consistent with business necessity. For example, an attorney may not be
			 required to submit to a medical examination or inquiry just because his or her
			 leg had been amputated. The essential functions of an attorney's job do not
			 require use of both legs; therefore such an inquiry would not be job related.
			 An employer may require a warehouse laborer, whose back impairment affects the
			 ability to lift, to be examined by an orthopedist, but may not require this
			 employee to submit to an HIV test where the test is not related to either the
			 essential functions of his or her job or to his/her impairment. If an
			 employee's serious health condition may also be a disability within the meaning
			 of the ADA, the FMLA does not prevent the employer from following the
			 procedures for requesting medical information under the ADA.