Doctor Doctor Give Me the News, Is My Employee Fit for Duty After FMLA Leave?

On April 15, 2014, a California appeals court ruled that after an employee returns to work from leave under the Family and Medical Leave Act (FMLA), an employer can require a medical reevaluation related to the health condition for which the employee was granted FMLA leave, so long as it is job related and consistent with business necessity.

In White v. County of Los Angeles (a copy of the order can be found here), Plaintiff Susan White, a Senior District Attorney Investigator with the Los Angeles County District Attorney’s Office, began experiencing emotional difficulties and erratic behavior in late 2009 following the death of her brother-in-law. Over the next year and a half, these problems negatively impacted her job performance. In mid-2011, White took FMLA leave to undergo mental health treatment.  Later that year, White returned to work with a clearance letter from her own doctor.

In early 2012, the DA’s office ordered a medical reevaluation to ascertain White’s capacity to perform her job duties. She refused to appear for the evaluation and subsequently sued. In her suit, she argued that requiring her to undergo the medical reevaluation violated her right under the FMLA to be restored to employment on her doctor’s approval alone. The lower court issued a permanent injunction preventing White’s employer from requiring a medical reevaluation of White, or from charging her with insubordination for failing to comply with the medical reevaluation.

On appeal, the court stated that Department of Labor regulations allow for a fitness for duty examination (FFDE), consistent with the Americans with Disabilities Act (ADA), after the employee’s return to work—when FMLA protections no longer apply. In contrast, before the employee’s return, the employer must accept the employee’s physician’s certification. Further, the court disagreed with the position that a single health care provider’s opinion is conclusive as to the employee’s fitness for work. The court noted that “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 FFDE, if it has a basis to question the employee’s health care provider’s opinion.” Thus, employers concerned about an employee’s fitness for duty can require a medical evaluation at the employer’s expense after the employee returns to work from FMLA leave.

In certain circumstances, this ruling gives employers some flexibility to evaluate their employees’ fitness for work after returning from FMLA leave, instead of relying on a single doctor’s opinion. Consistent with the ADA, such reevaluations must be job related and consistent with business necessity. Whether those requirements are met differ in each case and generally depend on the nature of the employee’s job, the requirements of the position, the business needs of the employer, and the specific impact that the employee’s health condition has on his or her particular job. For instance, since White was a peace officer who carried a weapon, her depression alone was sufficient to justify a FFDE.


Written by:


Orrick - Global Employment Law Group on:

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