A Little Aside . . . Unable to Perform the Functions of the Position.

So for the last 2 posts we were talking about military leaves and some definitions.  But the next regulations go back to part of the definition of a serious health condition and the need for leave.   Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

 Now you will notice in number 4, which deals with serious health conditions, it says that the employee gets leave if the serious health condition makes the employee unable to do his or her job.  So what the heck does that mean?  Well the definition is way down at 29 CFR §825.123(a).   And it is pretty straight forward and pretty simple:

(a) Definition. An employee is unable to perform the functions of the position where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act (ADA), as amended, 42 U.S.C. 12101 et seq., and the regulations at 29 CFR 1630.2(n). An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

29 CFR §825.123(a).

 So if the employee can’t work at all, or if the employee can’t perform one or more of the essential functions of their job, they have a serious health condition and can have a leave.  But how do you know, you certainly can’t rely on the employee to give the doctor the information you want the doctor to have right?  Right.  So the regulation deals with that too.

(b) Statement of functions. An employer has the option, in requiring certification from a health care provider, to provide a statement of the essential functions of the employee’s position for the health care provider to review. A sufficient medical certification must specify what functions of the employee’s position the employee is unable to perform so that the employer can then determine whether the employee is unable to perform one or more essential functions of the employee’s position. For purposes of FMLA, the essential functions of the employee’s position are to be determined with reference to the position the employee held at the time notice is given or leave commenced, whichever is earlier. See §825.306.

29 CFR §825.123(a).

You get to send the essential functions of the job to the health care provider for review and you get to get a statement back from the doctor as part of the certification process that says which of the essential functions the employee can’t do.  And I cannot stress enough what a valuable tool this is for employers.  For example, a doctor may think that the employee needs time off for appointments, not realizing that the employee works second shift.  Or, the employee may not be able to lift over 10 lbs. but have a job that only requires them to lift 5.  This is tool all employers should be using.