Help given on sick leave, drug testing under FMLA

An employer may limit employees' substitution of paid sick leave for unpaid medical leave by requiring employees to submit information beyond that required for the Family and Medical Leave Act (FMLA), said the U.S. Department of Labor (DOL) in a 2004 opinion letter.

In another opinion letter also issued late last year, DOL said an employer may require an employee returning from FMLA leave to undergo drug testing within three days of returning to work.

DOL is careful to note that such opinions are based exclusively on the facts and circumstances described in the requests. While they do not set precedent, opinion letters are indicative of DOL's enforcement position with respect to the precise issue raised.

Sick Leave Rules

The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave each year for certain family and medical reasons. DOL regulations provide that an employer may not limit an employee's substitution of accrued paid vacation or personal leave for FMLA leave but may limit substitution of paid sick leave to circumstances that meet the employer's usual requirements for the use of sick leave, according to a letter signed by the acting administrator of the Wage and Hour Division.

The employer in question has a paid sick leave plan that allows supervisors to require employees to submit "proof of illness" (a doctor's note, for example) to receive paid sick leave, even if they have already submitted medical certifications that qualify them for FMLA leave. Some absences may qualify under the FMLA but not the employer's sick pay plan; other absences may qualify under the sick pay plan and not the FMLA, the employer noted in its request for an opinion.

If the paid sick leave program "is uniformly applied to absences caused by illness regardless of whether the absences are FMLA-qualifying, and if employees may take unpaid FMLA leave or substitute accrued vacation or personal leave should they choose not to provide the additional proof of illness required to receive paid sick leave, then [the employer] would comply with the FMLA," the letter concluded.

On-The-Joh Drug Test

On the drug-testing issue, DOL noted that the FMLA allows an employer to require a "fitness for duty test" for employees returning from FMLA leave pursuant to a uniformly applied policy. However, an employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee's need for the leave, or if state or local law or the terms of a collective bargaining agreement establish certain return-to-work procedures.

"Nothing in the FMLA prohibits an employer from requiring an employee to submit to drug testing once the employee has returned to work," DOL concluded in the letter signed by an official in the department's Office of Enforcement Policy. A practice of requiring drug testing within three days of returning to work and treating an employee's refusal to submit to testing as insubordination do not violate the FMLA, the letter said.

MARGARET M. CLARK, J.D., SPHR, IS SENIOR LEGAL EDITOR FOR HR NEWS.

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