When an employee takes leave under the Family and Medical Leave Act (“FMLA”), the employee is entitled to be restored to employment upon certification from the employee’s health care provider that the employee is able to resume work.
Under the FMLA, the employer is not permitted to seek a second opinion regarding the employee’s fitness to return to work prior to restoring the employee to his/her position. Answering an open question, in White v. County of Los Angeles, a California appellate court confirmed that “a bright line” exists once the employee’s return to work.
After the employee is returned to work, the FMLA regulations are satisfied, and an employer may thereafter require an evaluation of the employee’s fitness for duty pursuant to the Americans with Disability Act if there is objective reason to believe the employee’s performance is being impaired by a medical condition.
Should an employer objectively conclude that a fitness for duty evaluation is necessary and legally permissible under the particular factual circumstances for an employee returning from a FMLA/CFRA leave, it should document that it has restored the employee to employment in compliance with the FMLA/CFRA before requesting a second opinion under the ADA or California’s FEHA.