October 25, 2004
FMLA2004-4
Dear Name*
This is in response to your
letter of January 9, 2004, regarding an employee's rights under the Family and
Medical Leave Act of 1993 (FMLA) and employer required drug testing. You ask
if an employer may require an employee returning from FMLA qualifying leave to
undergo drug testing within three days of the employee's return to work. You
state that employees who refuse to submit to the drug testing are treated as
insubordinate.
The FMLA entitles eligible
employees of covered employers to take up to 12 weeks of unpaid, job-protected
leave each year with continuation of group health insurance coverage under
the same conditions as prior to leave for specified family and medical
reasons. However, to be eligible for these FMLA protections, employees must
work for a covered employer, have worked for their employer for at least 12
months, have worked at least 1,250 hours during the 12 months preceding the
start of leave, and work at a site where the employer employs at least 50
employees at the site or within 75 miles of the site. The 12 months the
employee has to have worked do not have to be consecutive.
Eligible employees are
entitled to unpaid FMLA leave for any of the following reasons: (1) the birth of
a son or daughter, and to care for the newborn child within one year of birth,
(2) the placement with the employee of a son or daughter for adoption or foster
care, and to care for the newly placed child within one year of placement, (3)
to care for the employee's spouse, son or daughter, or parent who has a serious
health condition, and (4) for a serious health condition that makes the
employee unable to perform the essential functions of his/her job.
When an employee is
returning to work after FMLA leave, section 104(a)(4) of the FMLA permits an
employer to require a "fitness for duty" test if the employer has a
uniformly-applied policy or practice that requires all similarly situated
employees who take leave for their own serious health conditions to obtain and
present certification from their health care providers that they are able to
resume work. An employer may seek fitness-for-duty certification only with
regard to the particular health condition that caused the employee's need for
FMLA leave. 29 C.F.R. 825.310(c). However, if State or local law or the terms
of a collective bargaining agreement govern an employee's return to work, those
provisions shall be applied. Nothing in the FMLA prohibits an employer from
requiring an employee to submit to drug testing once the employee has returned
to work. Therefore, the employer's actions do not violate the FMLA.
Responsibility for
investigating allegations of violations of the FMLA has been delegated to the
district offices of the Wage and Hour Division. If you have additional
questions, you may contact the nearest Wage and Hour District Office located at
211 W. Fort Street, Room 1317, Detroit, Michigan, 48226, telephone (313) 226-7447.
This opinion is based
exclusively on the facts and circumstances described in your request and is
given on the basis of your representation, explicit or implied, that you have
provided a full and fair description of all the facts and circumstances which
would be pertinent to our consideration of the question presented.
Existence of any other factual or historical background not contained in your
request might require a different conclusion than the one expressed
herein. You have represented that this opinion is not sought by a party
to pending private litigation concerning the issue addressed herein. You have
also represented that this opinion is not sought in connection with an
investigation or litigation between a client or firm and the Wage and Hour
Division or the Department of Labor.
Sincerely,
Rosemary E. Sumner
Office of Enforcement Policy
Family and Medical Leave Act
Team
Note: * The actual name(s) was removed to preserve privacy
in accordance with 5 U.S.C. 552 (b)(7).