In the case of White v. County of Los Angeles , the California Court of Appeals recently considered whether an employer may seek its own medical evaluation of an employee’s fitness for duty, even when the employee’s treating physician has already certified that the employee is able to return to work. On April 15, 2014, the Court held that an employer may do so without violating the Family and Medical Leave Act (FMLA), provided that the employer does not deny restoration of employment to the employee and the request for fitness for duty assessment otherwise complies with the requirements of the Americans with Disabilities Act (ADA).
The Plaintiff, Susan White, was a Senior Investigator with the Defendant’s District Attorney’s Office. The essential functions of her job included serving arrest warrants, making arrests, interrogating suspects, and booking prisoners. According to the Court’s summary of the facts, in late 2009 Plaintiff began to experience emotional difficulties and was observed acting erratically in the workplace. She requested time off from work in 2011, and her doctor wrote on the “Certification of Healthcare Provider” form that Plaintiff was “severely depressed.” Based on this information, Defendant approved Plaintiff for an FMLA leave of absence. Upon exhausting her 12 weeks of FMLA leave, Plaintiff still had not been released to return to work. Defendant therefore extended Plaintiff’s medical leave for an additional period of time. Approximately one month later, Plaintiff’s doctor issued a letter stating that Plaintiff was able to return to work.
Of course, the FMLA requires that when an employee returns from FMLA leave, he or she is entitled to be restored to his or her position of employment or an equivalent position. Accordingly, Defendant permitted Plaintiff to return to work. However, after doing so, Defendant promptly requested Plaintiff to undergo a medical re-evaluation (i.e., a fitness for duty assessment). Significantly, Defendant sought this assessment based entirely on Plaintiff’s erratic conduct prior to her FMLA leave. The request apparently had nothing to do with anything that occurred during Plaintiff’s leave or after she returned from that leave. Plaintiff refused to submit to the fitness for duty assessment, and eventually filed suit against Defendant seeking injunctive relief on the grounds that the assessment request violated her FMLA rights.
The Plaintiff prevailed at the lower court. However, on appeal the California Court of Appeals reversed the lower court. The Court held that because the Defendant had in fact restored Plaintiff to work following the completion of her FMLA leave, the requirements of the FMLA were satisfied. The Court noted that while an employer cannot seek a second medical opinion of a return to work certification issued by the employee’s doctor, the FMLA does not prohibit the employer from seeking a fitness for duty assessment after the employee has returned to work. Under that circumstance, the employer must only demonstrate that its request for the assessment is “job-related and consistent with business necessity,” as required by the ADA. In this case, the Defendant’s request met this requirement because Plaintiff’s conduct prior to her leave of absence raised serious questions about her ability to perform the essential functions of her job.
This decision is instructive for employers which face questions about an employee’s ability to perform the functions of his or her job following return from FMLA leave. While the employer must comply with the FMLA’s requirements regarding restoration of the employee to the same or an equivalent position, the employer still has a lawful right to evaluate whether the employee is fit to perform the essential duties of the job. In that regard, the requirements of the ADA regarding medical examinations must be followed; however, if there is a reasonable basis for questioning the employee’s fitness for duty, a medical re-evaluation of the employee’s condition may be warranted. As always, each situation must be considered on a case-by-case basis, with careful review of the employee’s essential job functions and requirements. The fitness for duty assessment can be an important tool in this process, as well as the employer’s efforts to identify reasonable accommodations which will permit the employee to perform his or her essential job functions.