California Court Authorizes Fitness for Duty Examination After Employee Returns from FMLA Leave
It is well settled that the Family and Medical Leave Act (FMLA) requires employers to restore employees returning from leave to their original or equivalent job position, upon certification from the employee’s health care provider that the employee is able to resume work. The employer is not permitted to seek a second opinion regarding the employee’s fitness for work before restoring the employee to employment.
What had not been well settled was whether an employee may be required to undergo a further fitness for duty examination (FFDE) after he or she resumes work—until now. In White v. County of Los Angeles, the California Court of Appeal held in favor of the employer on that question: if the employer is not satisfied with the employee’s health care provider’s certification, the employer may restore the employee to work, but then seek a further FFDE at its own expense—even if the basis for the reevaluation is the employee’s conduct prior to being released to return to work.
Factual and Procedural Background
Susan White was employed as Senior District Attorney Investigator with the Los Angeles District Attorney’s Office (DA). Her essential job functions included personally serving arrest warrants and making arrests. Her position required her to carry a gun and have peace officer status. Unfortunately, she began experiencing emotional difficulties, her colleagues observed her acting erratically, and she was investigated for committing perjury and filing false reports. When confronted by her supervisors about their concerns, White acknowledged her erratic behavior and said she was having problems with her medications.
In May 2011, White’s psychiatrist advised the County that White suffered from severe depression and would benefit from professional treatment. In response, the DA approved White’s 12-week FMLA request on June 6, 2011. At the end of the 12 weeks, the psychiatrist requested a nearly three-month extension of the leave for an additional evaluation, and the extension was granted. On August 18, 2011, the doctor wrote a final letter representing that White would be able to return to work and perform her essential job functions on September 7, 2011.
White was restored to her employment on September 7, 2011. Shortly before resuming work, she was informed that she would be placed on paid administrative leave and reassigned to her home. On December 7, 2011, pursuant to County civil service rules, the DA requested that White undergo medical reevaluation. That request was approved and White was ordered to appear for her medical reevaluation at the County’s expense. White twice failed to appear for the reevaluation, despite warnings that her failure could result in termination.
White sued the County, seeking an order prohibiting the DA from requiring her to appear for a medical reevaluation or disciplining her. She claimed that requiring her to perform the reevaluation violated her right under the FMLA to be restored to employment on her doctor’s certification alone. The trial court granted an injunction, noting at the hearing that “[t]he whole point of the [FMLA] is that she was [reevaluated,] by her own psychologist.” Defendant appealed.
What the Court Held
The court of appeal held that the DA’s order for a medical reevaluation four months after White’s return to work did not violate her rights under the FMLA. Citing the FMLA statute, the court noted that the FMLA permits an employer to order a second opinion to determine whether the employee has a condition requiring FMLA leave in the first place, but it does not permit the employer to order a second opinion prior to reinstating the employee upon completion of FMLA leave. The FMLA implementing regulations, the court noted, incorporate the requirements of the Americans with Disabilities Act (ADA), which requires that any medical examination by the employer’s health care provider be job-related and consistent with business necessity.
The court rejected White’s argument that the requirement that an employee be returned to duty upon receipt of the fitness-for-duty certification would be “nullified” if the employer could immediately order a reevaluation based solely on the fact that the employee had taken FMLA leave. The court noted that the FMLA regulations had been revised in 2008, including adding the sentence, “After an employee returns from FMLA leave, the ADA requires any medical examination at an employer’s expense by the employer’s health care provider be job-related and consistent with business necessity.” According to the court, this new sentence expressly discussed medical evaluations after the return to FMLA leave. The Department of Labor comments confirmed that “a bright line exists at the employee’s return to work.”
The court also noted that “[t]he FMLA itself acknowledges that medical professionals can disagree on whether an employee’s serious health condition renders the employee unable to work.” Thus, the FMLA “should be interpreted to render the employee’s health provider’s opinion conclusive on the issue of whether the employee should be immediately returned to work, but to permit the employer to thereafter require a FFDE, if it has a basis to question the employee’s health care provider’s opinion.”
White Applies to All Employees Returning from FMLA Leave
The White opinion applies to “all employees who have taken FMLA leave.” It does not address claims under the California state equivalent, the California Family Rights Act (CFRA).
The court did not restrict its holding to reevaluations of matters arising after the FMLA leave. Thus, an employer may (1) order a FFDE (2) after the employee returns to work (3) on matters that gave rise to the FMLA leave in the first place. But, the FFDE must be based on matters that are job-related and based on business necessity.
The court did point out that its conclusion was “particularly applicable” to White’s case because of her peace officer status and need to carry a gun; under Government Code section 1031, a peace officer shall be “free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.” In these circumstances, it was not even necessary for an employer to establish that the employee’s job performance had actually suffered in order to require a FFDE.
For less obvious circumstances where emotional or mental condition may not be as directly related to the employee’s job functions, the employer should be careful to tailor the FFDE to the particular issues that may affect the particular employee’s performance. The employer should consult its proposed health care provider for input as to what the proper scope of the examination should be.