An employer did not violate the federal Family and Medical Leave Act by requiring an employee to undergo a fitness-for-duty evaluation after it had restored her to her position following a medical leave of absence for psychological issues, the California Court of Appeal has ruled. White v. County of Los Angeles, No. B243471 (Cal. Ct. App. Apr. 15, 2014). Reversing a permanent injunction prohibiting the employer from requiring the evaluation, the Court noted the request for an evaluation was appropriate, given the employee’s erratic conduct prior to her leave and the requirement that she carry a weapon as part of her job.
Susan White worked as an investigator with the Los Angeles County District Attorney’s Office; as such, she held peace officer status and carried a weapon. In 2009, White began experiencing psychological difficulties. From 2010 to 2011, White’s conduct at work became increasingly erratic, raising concerns about her ability to perform her duties safely and effectively. In May 2011, White’s supervisor granted her request for a medical leave of absence under the federal FMLA. Before the leave expired, White’s physician requested additional leave for her. White then was placed on an excused medical leave of absence until September 7, 2011, when her physician cleared her to return to work.
After the D.A.’s Office restored White to her position, it requested that she undergo a fitness-for-duty examination in accordance with the civil service rules. White refused and filed a lawsuit for an injunction prohibiting the D.A.’s Office from requiring her to undergo the evaluation, arguing the evaluation interfered with her rights under the FMLA. The trial court issued the injunction. The D.A.’s Office appealed.
To establish a claim for interference with FMLA rights, the employee must prove that:
- He or she was eligible for the FMLA’s protections;
- The employer was covered by the FMLA;
- He or she was entitled to leave under the FMLA;
- He or she provided sufficient notice of the intent to take leave; and
- His or her employer denied FMLA benefits to which he or she was entitled.
Under the FMLA, when an employee has completed his or her leave and is certified to return to work by his or her health care provider, the employee must be reinstated to the same or equivalent position. While the FMLA permits an employer to request a second opinion to determine whether the employee has a condition requiring FMLA leave, the law does not permit the employer a second opinion prior to reinstating the employee. However, the FMLA regulations provide that, after an employee returns from FMLA leave, any medical examination must be job-related and consistent with business necessity in compliance with the Americans with Disabilities Act (“ADA”).
Fitness-for-Duty Evaluation Permitted
White argued that, once her physician certified her to return to work, the D.A.’s Office could not require her to undergo a fitness-for-duty evaluation because the evaluation would undermine her return-to-work certification. The Court rejected this argument. It noted that, under the FMLA, an employer cannot require a second opinion regarding a health care provider’s certification that the employee may be restored to her position. However, the FMLA regulations permit an employer to conduct fitness-for-duty evaluations that are job-related and consistent with business necessity following an employee’s restoration to her position.
Further, the Court ruled White’s interpretation of the FMLA would render the employee’s health care provider’s opinion conclusive. Noting White’s argument did not comport with the FMLA’s overall structure, the Court observed, “medical professionals can disagree on whether an employee’s serious health condition renders the employee unable to work,” and the FMLA permits employers to seek a second and even third opinion on whether an employee qualifies for FMLA leave. Accordingly, the Court concluded, “the FMLA should be interpreted to render the employee’s health care 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 [fitness-for-duty evaluation], if it has a basis to question the employee’s health care provider’s opinion.”
Here, White was restored to employment, as the FMLA required. The D.A.’s Office, concerned about White’s ability to manage her psychological issues in light of her conduct before her leave, then sought a fitness-for-duty evaluation. Indeed, the Court found it was “appropriate” for White to undergo a fitness-for-duty evaluation since, as a peace officer, she carried a weapon. Thus, the Court ruled the D.A.’s Office’s actions did not interfere with White’s FMLA rights and reversed the injunction.
White confirms that an employer may request a fitness-for-duty evaluation after restoring an employee to a position following FMLA leave, provided the employer has an objectively reasonable basis for the evaluation. The employer also must ensure the evaluation complies with the ADA’s requirements that any examination be job-related and consistent with business necessity.