Many employees believe that if they are injured and unable to work, their employers are required to grant them a leave of absence. As an additional requirement, they also believe there must be a job waiting for them after they recover from their injuries. Although, in many instances, an employer will grant a request for a leave of absence as a matter of policy, there may be situations where there is no legal requirement that the employer hold the job open for the employee until he recovers from his injuries.


Initially, it should be noted that the Family and Medical Leave Act ("FMLA") requires employers with 50 or more employees to grant a leave of absence of up to 12 weeks for an employee with a "serious health condition." The FMLA was not designed to provide unpaid leave for relatively minor or temporary conditions such as the common cold, the flu, ear aches or an upset stomach. Rather, the statute defines serious health condition as an illness, injury, impairment, or physical or mental condition that involves:

  1. "any period of incapacity or treatment in connection with inpatient care in a hospital, hospice, or residential care facility" or

  2. a condition involving a period of incapacity lasting at least three consecutive days where there is also a regimen of continuing treatment by a health care provider.

29 CFR '825.114 Obviously, an injury at work will often qualify as a serious health condition for purposes of FMLA leave.

Employers can ask for medical certification before granting FMLA leave or upon receiving notification by the employee that he or she is ready to return to work (also known as a "fitness-forduty" certification). An employer that seeks an initial certification of a serious health condition must give the employee notice of the employee's need to furnish such certification. If the employer questions the validity of the medical certification, it may require that the employee obtain a second opinion at the employer's expense and from a health care provider of the employer's choosing, provided that the provider is not employed by the employer on a regular basis. If the second opinion conflicts with the first opinion, then the employer may, again at its expense, require the employee to obtain a third opinion, which shall be final and binding on the parties. In this case, the examiner must be a health care provider designated or approved jointly by the employer and employee. See 29 CFR ' 825.307. An employer may also deny job restoration to an employee returning from leave until the employee submits a fitness-for-duty certification from the health care provider that the employee is able to resume work. Once the employee provides such a certification, however, no second or third fitness-for-duty certification may be required. See 29 CFR ' 825.310.

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