August 2001

The Family and Medical Leave Act ("FMLA") and accompanying regulations set forth specific information about the medical certification and proper procedures for an employer to follow when returning an employee to work who has taken leave. However, when applied to a situation that involves a collective bargaining agreement ("CBA"), the U.S. District Court for the Eastern District of Pennsylvania in Conroy v. Township of Lower Merion Township held that a CBA, or an employer's past practice, can supersede the FMLA return-to-work procedures. Although the Court noted that the FMLA allows a CBA to establish its own return-to-work procedures, it did not address whether a non-unionized employer could rely upon its past practice to defend an additional step in its FMLA return-to-work procedures. As such, this case may be a defense to a challenge brought by an employee in regard to a non-unionized employer's return-to-work requirements.

In Conroy, the plaintiff employee was on leave from work for approximately two months when she notified her employer of her desire to return to work. Because her physician's return to work certificate was, according to the employer, unclear and confusing, the employer required the plaintiff employee to submit to an independent medical examination ("IME"). The employer represented that it required the IME in order for the employer to determine the employee's fitness for work. Relying upon the FMLA and arguing that it guaranteed an employee to return to work as long as the employee's physician provides a certification, the employee refused to submit to an IME as ordered by her employer. The employee was subsequently terminated from her employment.

The Court held that although the FMLA has clear return-to-work provisions, the FMLA also allows a CBA to establish its own procedures for returning an employee to work and that those procedures can supersede those of the FMLA. In addition, the Court referenced the Supreme Court's holding in Conrail v. Railway Labor Executives Association and stated that a party's past practice may be considered implied terms of a CBA. Because the employer had previously and consistently applied the same IME requirements to twenty-six other employees who had unclear medical releases, the Court treated the employer's past practice as an implied condition of the CBA. Furthermore, the Court found that the IME requirement did not interfere with the rights guaranteed by the FMLA because the FMLA only entitles an employee to resume her employment and does not ensure a particular administrative procedure to return. In sum, the Court held that the IME only created an additional step for the plaintiff to perform and it did not alter the standards for plaintiff's eligibility to return to work.

Interestingly, in Conroy it was the employer, and not the union, who successfully used a past practice as a way to support and legitimize its actions. In this case, the procedure for an employee upon returning from leave was not written into the CBA but was accepted as a past practice. An employer who is interested in relying upon its respective past practice as support for its actions must be cautioned that a past practice must be consistently applied in order to have any chance of it being valid and deemed incorporated into a CBA or asserted as a defense. Thus, any action taken by an employer, unionized or not, that is not consistent with a past practice will only undermine all prior attempts to establish the past practice.