Susan White is employed with the Los Angeles County District Attorney's Office (DA) as a Senior District Attorney Investigator. The position requires peace officer status under Government Code section 1031, and the essential functions of the position include personally serving arrest warrants, making arrests, interrogating suspects, and booking prisoners.
White's brother-in-law died in late 2009. Around that time, White began experiencing emotional difficulties, and displayed erratic behavior in the workplace. In April 2010, White was part of a team of investigators executing a search warrant. White was guarding the perimeter of the location when, without warning to her team members, she jumped over a wrought iron fence and said, "Who's coming with me?" Her actions jeopardized her safety by placing her in a position of potential cross fire from team members. Other investigators believed White may have psychological issues affecting her stability. White's former supervisor informed White's current supervisor, Terisa Carver, that White had recently stated she was having problems regulating her medication.
In April 2010, White asked for the afternoon off because she said her medication was making her "feel stupid."
In May 2010, White was observed crying, anxious, and experiencing mood swings.
In June 2010, White attended a tactical training, where she appeared nervous, made poor tactical decisions, tripped over a fellow investigator, and pointed her fake weapon at team members. The next day, White was instructed to wait off-site while two investigators contacted a suspect. Instead of waiting, White drove down the street at a high rate of speed with the vehicle's siren blaring and parked in the middle of the street so that she could provide back-up to the other investigators. When questioned about the incident, White said she went to back-up the officers because she had seen them with their guns drawn, a fact that the officers "emphatically denied."
In July 2010, when White was talking to Carver, she described herself as a "whack job."
In February 2011, White met with Carver and began crying, saying she was worried her father was going to purchase a gun and kill himself and White's mother. When Carver asked White about the situation the following week, White looked confused and downplayed it. That same month, White was required to testify in a criminal case for which she had assisted in the investigation (the Kim case). When asked on the stand why her testimony differed from that of the other witnesses, White yelled at the defense attorney, "They are liars!" When White testified the following month in the same case, the defense attorneys demonstrated that White's testimony contained significant factual errors. The defense attorneys filed a personnel complaint against White with the DA's office, alleging perjury and the filing of false reports.
In April and May 2011, White told Carver that she needed to take time off from work to undergo treatment. The DA approved White's request for FMLA leave on June 6, 2011. White's treatment took longer than expected, so White's psychiatrist requested two leave extensions. While White's doctor originally requested leave through June 20, 2011, White was not able to return to work until September 7, 2011. White's FMLA leave expired on August 5, 2011, so the DA put her on unpaid, but authorized, medical leave from August 5 until September 7, 2011. Effective September 7, 2011, the DA restored White to employment, but placed her on paid administrative leave and reassigned her to her home pending an administrative investigation into her conduct while testifying in the Kim case.
Pursuant to the Los Angeles Civil Service Rules, the DA requested the Occupational Health Programs (OHP) for permission to require White to undergo a medical reevaluation. Based on a review of White's pre-FMLA leave conduct and her job requirements, the OHP agreed. White was ordered to appear for a medical reevaluation that would be performed on January 27, 2012 by a doctor at the OHP. The OHP ordered a reevaluation based solely on White's erratic conduct prior to her FMLA leave, not to any conduct occurring while she was on leave or after she returned from leave. White was warned that failure to appear may be cause for disciplinary action. She failed to appear. The DA rescheduled her appointment and warned her that failure to appear may be cause for disciplinary action. White again failed to appear.
On February 23, 2012, White filed a civil action seeking injunctive relief or a writ of mandate prohibiting the DA from requiring her to appear for a medical or disciplining her for failing to appear. She alleged that the reevaluation order violated her right under the FMLA to be restored to employment. The superior court found in White's favor, concluding that the certification from White's doctor that she was fit for work upon her return from FMLA leave must be accepted as sufficient. The court issued a permanent injunction and a writ of mandate. The DA appealed, and the Court of Appeal reversed.
Under the FMLA, an employee returning from FMLA leave is entitled to be restored to his or her employment position or an equivalent position. If the employer has a uniformly applied practice or policy requiring it, the employer may require each employee taking FMLA leave to provide certification from the employee's health care provider that the employee is able to resume work.
The Court held that White was returned to work on September 7, 2011, and therefore the FMLA return to work requirements were not implicated. Rather, the issue was whether, after an employee has been returned to work, the FMLA prevents an employer from ordering the employee to submit to a medical reevaluation related to the serious health condition for which the employee was granted leave. The Court held that it does not.
After granting White the full 12 weeks of FMLA leave, the DA reinstated White to employment based on the certification from her psychiatrist that she was ready to return. Four months later, it ordered White to submit to a medical reevaluation.
The FMLA regulations provide that after an employee returns from FMLA leave, it is a violation of the Americans with Disabilities Act (ADA) to require a medical examination unless the examination is job-related, consistent with business necessity, and conducted at the employer's expense. The regulations were meant to clarify that a bright line exists at the employee's return to work. Before the return to work, the employer must accept the employee's physician's certification and return the employee to employment. After the return to employment, the FMLA protections no longer apply, and the employer may require a fitness for duty examination consistent with the ADA.
While the doctor's opinion as to whether an employee should be returned to work is conclusive, the Court noted that it is unlikely that Congress intended an employee's doctor's opinion to be conclusive on the employee's fitness for work. It also noted that its conclusion was particularly applicable to the facts of this case, where White was a peace officer carrying a weapon. Government Code section 1031 requires that peace officers be free from physical, emotional, or mental conditions that may adversely affect their exercise of peace officer powers.
The Court concluded that the DA did not violate the FMLA when it ordered White to appear for a fitness for duty examination. It reversed the superior court's orders and ordered judgment in the DA's favor.
This is an important case as it clarifies that the FMLA does not preclude employers from sending an employee for a fitness for duty examination based on pre-FMLA conduct. However, there are a couple of things to keep in mind before ordering such an examination:
- This case talks about the ability to request a return to work certification from an employee coming back from FMLA leave. An agency may only request a return to work certification if it has a policy or practice of requiring such a certification and it notifies the employee when it designates the leave as FMLA-qualifying that the certification will be required.
- An employee who has been on FMLA leave must be returned to employment. While the County in this case placed White on paid administrative leave and reassigned her to her home, it did so because White was currently the subject of an internal affairs investigation.
- In order to avoid violating the ADA, the examination must be job-related, consistent with business necessity, and conducted at the employer's expense. It is easier to justify an examination where, as here, the employee is a peace officer and thus subject to the requirements of Government Code section 1031.
White v. County of Los Angeles (2014) 170 Cal.Rptr.3d 472.