Wagner Header

The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104







September 18, 2014


 Health and Welfare Law Alert




Federal Court Provides Guidance on Employees' FMLA Right to Return to Work




The U.S. Court of Appeals for the Third Circuit has issued a decision providing guidance on an employee's right to return to work under the Family and Medical Leave Act ("FMLA"). In Budhun v. Reading Hospital and Medical Center, the Third Circuit ruled that an employee's interference and retaliation claims under FMLA could go forward because her former employer did not allow her to return to work following FMLA leave, despite a fitness-for-duty certification from her healthcare provider indicating that she could perform her job duties.


Law. An employer is prohibited from interfering with an employee's FMLA rights, including the employee's right to return to work following FMLA leave. FMLA regulations provide very specific rules pertaining to the employee's right to return, including the information that must be provided to the employee, and the extent to which employers can require medical information before allowing the employee to return.


An employer may require an employee who has requested to return to work from FMLA leave to provide a fitness-for-duty certification, indicating that the employee can perform all essential job functions, but only if it provides the employee with a list of essential job duties when recognizing the employee's right to take FMLA leave.


Facts. In Budhun,the plaintiff was a credentialing assistant, a job that required her to type approximately 60 percent of the time. After breaking a bone in her hand, the plaintiff took a leave of absence under FMLA.


The plaintiff was treated by a doctor who placed her injured hand in a splint. The doctor completed an FMLA leave certification form based on the plaintiff's representations that she could satisfy her typing duties using the splint. Shortly thereafter, the doctor provided the plaintiff with a fitness-for-duty certification indicating that she could return to work without restrictions.


When the plaintiff attempted to return to work, she could not type at full speed and the defendant refused to allow her to continue to work, maintaining that she needed to be able to be able to type at full speed in order to return. In response, the plaintiff took additional FMLA leave and the defendant subsequently filled her position. The plaintiff sued, claiming her employer had interfered with her FMLA right to return to work and that it retaliated against her for invoking her FMLA rights.


The Third Circuit held that the plaintiff presented sufficient evidence to demonstrate that she should have the chance to prove that she had invoked her FMLA right to return to work and that the defendant had interfered with that right. The court noted that the FMLA allows an employer to require an employee to provide a fitness-for-duty certification before being permitted to return to work. This fitness-for-duty certification would include the list of all essential duties. However, because the defendant had failed to provide the plaintiff with such a list, the doctor's general fitness-for-duty certification, which stated she could return to work without restrictions, was sufficient. While the defendant could have contacted the plaintiff's doctor to request clarification, it instead chose to overrule the doctor and impermissibly interfere with the plaintiff's FMLA rights.


Action Steps for Employers. Following Budhun, employers should review their job descriptions to ensure that they are fully developed and contain details with respect to each essential job duty. When providing an employee with notice of his or her eligibility for FMLA leave, employers should also be sure to provide the employee with a list of essential job duties so that any fitness-for-duty certification is based on the employee's ability to perform these duties. Finally, employers must be cognizant that they cannot delay an employee's return to work from a FMLA leave while attempting to obtain clarification about the certification from the employee's healthcare provider.




This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.


This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.