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The case of Budhun v. Reading Hospital and Medical Center, 765 F.3d 245 (3d Cir. 2014) shows how complex return-to-work issues can be under FMLA. The plaintiff in that case, Vanessa Budhun, worked as a credential assistant for Reading Hospital. About sixty five percent of her job required typing. Budhun took about four weeks of FMLA leave between March 31, 2010 and May 7, 2010. An employee from a different department filled in for her during that time.
On July 30, 2010, Budhun broke the fifth metacarpal of her hand and came to work with a metal splint on her hand. An HR manager emailed her stating, “Your supervisor has made us aware that you have an injury that prevents you from working full duty.” Budhun was given FMLA forms and she left work to see a doctor. She told her doctor that she could type with the five fingers on her left hand and just her thumb and index finger on her right hand, so Dr. Battista provided a note dated August 10, 2010 stating that Budhun could return to work “no restrictions in splint.”
Budhun returned to work on August 16, 2010. She advised HR that her doctor would complete the FMLA form she gave him within 10 to 15 days. She advised in an email that she could “type slowly and write a little bit, but not as fast as I used to . . . I could work but not fast.” The HR manager wrote back replying that because her return to work note provided no restrictions, Budhun should be able to work at full speed. She added that if she could not work full speed, she needed to contact her physician and ask for a note keeping her out of work. The HR representative advised Budhun that she needed to be able to perform at the same capacity she had before her hand injury.
Budhun left work again and made contact with her physician, who then supplied a note keeping her out of work until August 16, 2010. He checked off “yes” on the box referring to her being unable to perform all of her job functions. He did not clarify which job functions she was unable to perform. However, the final page of the medical certification was inconsistent in that it stated Budhun needed to be out of work until September 8, 2010. Budhun underwent occupational therapy. On September 8, 2010, she faxed another note in which Dr. Battista stated she would be out of work until her next appointment in November.
The hospital extended her FMLA leave until September 23, 2010, when her 12 weeks would run. It approved non-FMLA leave until November 9, 2010. In mid-September the hospital offered Budhun’s job to another employee.
On September 29, 2010, Budhun emailed the Hospital a note saying she could return to work on October 4, 2010. She was then told that she had been replaced by another employee. Because of a prior written discipline charge, Budhun was unable to transfer to another position. She was given the option to apply to the hospital essentially as an outsider for a position but Budhun did not pursue this route, and when her non-FMLA leave ran out in November, she was terminated.
Budhun sued under the FMLA and argued that she had been able to return to work full duty on August 16, 2010 but the hospital prevented her from working. The court sided with Budhun:
At the time she entered her place of work on August 16, all of the information that shehad from her treating physician, and all of the information that she had provided to Reading,indicated that she intended to return to work as of that day, and could do so with ‘no restrictions.’
The court said that Budhun’s fitness for duty certification stated she could return to work with no restrictions. The court noted that Reading did not provide Budhun a list of essential functions for her to present to Dr. Battista, essentially laying the blame on the hospital for the lack of clarity in this area. The court suggested that the hospital could have contacted Dr. Battista to clarify any issues but failed to do so. However, it could not delay the return to work of an employee with a full duty return-to-work note. The court criticized the HR manager for overruling the doctor on the return-to-work issue.
This case is an important one for employers in the State of New Jersey which is part of the Third Circuit. The downfall of the hospital here was the failure to provide the essential job functions to the physician, so the physician perhaps did not fully understand the job duties. The court focused on a strict reading of the FMLA, which provides job reinstatement rights when the employee’s physician indicates that the employee can return to work.
This case underscores an inherent dilemma in the FMLA for employers. Employees must be able to perform their job duties on return to work. A return to work with restrictions is not a full-duty return-to-work note. The question is who decides whether the employee has restrictions? The FMLA does not allow employers to assess ability to perform essential functions; instead it places this obligation on the physician, who often may not fully understand the essential functions, particularly if the physician has no job description. Further, physicians have limited time to address such issues with all the other competing demands on medical practices today. In this case, the employee herself admitted she could only type slowly. The response of the court on this point was very interesting: “Budhun admitted that it was not likely that she could type as quickly with seven fingers as she formerly could with ten. But this alone does not mean that she could not perform this essential function.”