A recent decision by the notoriously employee-friendly California Court of Appeal is instructive for an employer questioning an employee’s ability to perform the functions of his or her job following return from Family Medical Leave Act (“FMLA”) leave. While the employer must comply with the FMLA’s requirements regarding restoration of the employee, the employer has a right to evaluate the employee’s fitness to perform the essential job duties following such restoration.

In White v. County of Los Angeles, decided by the California Court of Appeal last month, an employee took FMLA leave to undergo treatment for severe depression she suffered following the death of a family member. At the end of the leave, White’s physician released her to return to her former position, which involved the arrest and interrogation of suspects and required White to carry a firearm. Although White was restored to her former position, the county questioned her ability to perform her job safely in light of her erratic and overly emotional pre-leave behavior. After White returned to the job, the county immediately requested a second medical opinion as to White’s fitness for duty. She refused to submit to such an evaluation and filed a lawsuit alleging that the county’s demand violated her rights under the FMLA.

In reversing the lower court’s decision, the California court dismissed her claim. The Court noted that an employee, upon her healthcare provider's certification that she is able to resume work, must be reinstated to her same position or an equivalent position without delay. However, the Court held that an employer may require a second medical opinion after the employee has been restored to work because the employee is no longer on FMLA leave. In such instances, the employer who has concerns about the employee’s ability to safely perform the key functions of the job and who is unsatisfied with the certification of the employee’s physician, can require an independent medical evaluation pursuant to the guidelines of the Americans with Disabilities Act.

Under the ADA, a medical examination may be required provided it is “job-related and consistent with business necessity.” The employer can choose the health care provider to conduct the exam, subject to some limitations, but must assume the expense of the examination.

Employers are wise to remember the ADA requires an individualized analysis and a second opinion may not be appropriate in all instances. Employees should only be required to submit to an independent medical evaluation where the employer has a legitimate concern about the employee’s ability to safely perform the job and can clearly articulate the basis for such concern, after careful review of the employee’s job duties.