Pending adverse actions or performance-based actions may be taken and made effective even if the employee is taking FMLA leave.  For example, if an employee was unsuccessful in improving his or her performance during an opportunity period to improve and invoked his FMLA entitlement immediately following the opportunity period, the agency may issue the proposal and decision notices for removal based on unacceptable performance and effect the action just as it normally would.  There is no obligation to wait until the employee has returned from FMLA leave in order to proceed with an otherwise valid adverse or performance-based action.  Of course, agencies cannot remove or otherwise discipline an employee based on his or her use of leave under the FMLA.

In response to the comments and numerous inquiries on the appropriate application of the FMLA in these matters, § 630.1208(k) has been added to state that an employee's request for and/or use of leave under the FMLA does not prevent an agency from taking appropriate action under 5 CFR part 432 or 5 part CFR 752.  Also it remains the case that an employee who invokes his or her entitlement to FMLA leave is not immune from the impact of a reduction in force before, during, or after the period of FMLA leave.

Medical Certification to Return to Work

OPM received written and telephone comments from several agencies that advocated requiring medical certification to return to work when an employee's serious health condition represented a danger to the employee or coworkers. The commenters strongly objected to OPM's interim regulations limiting medical certification to return to work only to those employees who occupy a position that has medical standards or physical requirements.  The agencies believe this restriction is in conflict with 5 U.S.C. 6384(d).  In addition, an agency commented that in any other situation where there is a question as to whether an employee's presence at work may present a danger to the employee or to others, or when an employee appears to be too ill to work, management has the right to request medical documentation to ascertain whether it is appropriate to allow the employee to return to work.  The agency does not believe the intent of the FMLA is to relieve management of this right.

Section 6384(d) of title 5 states, "As a condition of restoration . . . , the employing agency may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work."  After careful analysis and review of the law and legislative history, OPM agrees that Congress intended to provide agencies the authority to establish a uniform policy to require medical certification to return to work from each employee who invokes FMLA leave for his or her own serious health condition.  Therefore, § 630.1208(h) has been revised to permit agencies to establish a uniformly applied practice or policy that covers all similarly-situated employees (e.g., same occupation, same serious health condition, or same duration