FLORIDA EMPLOYMENT DISCRIMINATION DEFENSE: REQUIRING A DOCTOR’S NOTE IS NOT DISCRIMINATION OR RETALIATION

Employers often face the situation where an employee seeks to return to work after medical leave but may no longer be able to handle the duties of his or her job. It is unlawful to terminate an employee for taking medical leave or for having a disability. However, it is lawful for an employer to have a uniformly applied practice or policy that requires each employee to provide medical certification from the doctor that he or she is able to resume work. 29 U.S.C. §2614(a)(4). The failure to provide that medical certification is a legitimate, nondiscriminatory reason to terminate employment. Peter Mavrick is a Fort Lauderdale employment attorney who defend businesses accused of employment discrimination.

In the case of Diaz v. Transatlantic Bank, 367 Fed.Appx. 93 (11^th Cir. 2010), a former employee sued her former employer alleging interference and retaliation in violation of the Family and Medical Leave Act of 1993 (FMLA) and discrimination and retaliation in violation of Americans with Disabilities Act (ADA). Diaz was a bank teller at Transatlantic Bank (“Bank”). Diaz took medical leave to recover from a severe knee injury. Transatlantic Bank requested documentation and medical updates concerning her condition during her leave and Diaz complied. Her injury prevented her from climbing into the high chairs used by bank tellers, so she informed the Bank that she was willing to work at any other position that did not required her to climb into those chairs. When Diaz’s medical leave expired, she did not have clearance from her doctors to return to work, which resulted in her dismissal from the Bank. She then filed her lawsuit claiming FMLA interference, discrimination and retaliation by the Bank.

In support of her FMLA interference and retaliation claims, Diaz argued that the proof of her medical clearance to return to work was in her doctor’s statements on her disability application that detailed the tasks that she could complete. The doctor’s statement indicated that she could complete every task of a bank teller except climbing into the high chairs. However, the trial court was not persuaded that the application was proof of medical clearance, because the form itself stated that she would not be able to return to work for weeks beyond her allotted medical leave. The trial court found it to be unreasonable to ask an employer to determine if she was able to return to work based on a statement contained in an application for disability benefits.

In support of her ADA discrimination and retaliation claims, Diaz argued that the medical evidence taken as a whole, shows that she was disabled when her employment was terminated. However, the trial court found that the doctor’s statements in the disability application only showed a temporary condition, not a disability. Her other medical evidence of her condition was discovered after her termination and thus was not available to the Bank when they fired her.

Ultimately, the trial court granted summary judgment in favor of the Bank because there was no evidence that Diaz ever provided medical clearance from a doctor that would allow her to return to work. The Bank’s requirement for each of its employees to provide medical clearance before returning to work from medical leave was found to be a lawful, legitimate and nondiscriminatory practice. It was Diaz’s burden to show that she had complied with this requirement in order for the trial court to consider whether she proved the prima facie elements of her causes of action for discrimination or retaliation, and she did not meet that burden. On appeal the trial court’s decision in favor of the Bank was affirmed.

Peter Mavrick is a Fort Lauderdale employment lawyer who represents businesses. This article does not serve as a substitute for legal advice tailored to a particular situation.