Wagner Header

The Wagner Law Group

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 28 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



Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110


Washington, D.C.

Tel: (202) 969-2800

  Fax: (202) 969-2568

800 Connecticut Ave., N.W.

Suite 810

Washington, D.C. 20006


Palm Beach Gardens 

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



Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

Suite 600

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
100 South 4th Street, Suite 550
St. Louis, MO  63102 







February 1, 2017


 Health and Welfare Law Alert




 FMLA Notice Failure is FMLA Interference






The Sixth Circuit Court of Appeals recently determined, in Casagrande v. OhioHealth Corp., that an employer violated the Family and Medical Leave Act of 1993 ("FMLA") when it failed to notify an employee on FMLA leave that he would not be restored to his position without first providing a fitness-for-duty certification.


Background. Under certain circumstances, FMLA allows an employer to require an employee returning to work from medical leave to provide a fitness-for-duty certification. However, to impose this requirement, FMLA requires that the employer: (i) notify the employee of this requirement at the same time that the leave is designated as FMLA-eligible, and (ii) maintain a uniform policy of requiring such certifications..  


Facts. In Casagrande, an employee requested several weeks of medical leave, but because he had not worked for the employer for at least a year, he was not yet eligible for FMLA leave. Nonetheless, the employer granted the employee's request under its own leave policy.   The employee returned to work, but shortly thereafter was again required to take leave under the employer's policy.


While out under the employer's leave policy for the second time, the employee became eligible for FMLA. When the employee attempted to return to work, the employer instructed him to apply for a different position because it had filled his original job. The employer also explained that the employee would need to provide a fitness-for-duty certification from his doctor to be reinstated.


When the employee provided the certification, the employer realized that the employee had become FMLA-eligible while on leave. In response, the employer returned the employee to his original position and paid him for the time between the provision of the certification and his reinstatement. Despite these accommodations, the employee sued the employer claiming that it had interfered with his FMLA rights. At trial, the employee asserted that the employer had interfered with his FMLA rights because it had delayed his reinstatement, and the employer contended that the delay resulted from the employee's failure to provide the required certification.


Sixth Circuit. In hearing the matter, the Sixth Circuit questioned whether the employer could require the employee to provide a certification, as there was nothing in the record to suggest that it had a uniform policy of requiring them from all employees. In fact, the employer had not required the employee to provide a certification when he returned after his first leave.


The Sixth Circuit determined that the employer did not follow FMLA requirements when it did not provide an FMLA designation notice to the employee to explain that his reinstatement would be contingent on providing the certification. Accordingly, the Sixth Circuit concluded that, as a matter of law, the employer had interfered with the employee's FMLA rights because it had failed to inform the employee of the requirement to provide the certification in its FMLA designation notice.


Takeaway for Employers. FMLA authorizes employers to condition job reinstatement on an employee's providing a fitness-for-duty certification if that requirement is communicated (to employees) in their FMLA designation notices. Moreover, employers that impose a certification requirement for reinstatement from FMLA leave must adopt the practice as a uniform policy and apply it to all employees.





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.