On a number of occasions, we have discussed whether an employer can keep an employee out on FMLA leave even though they want to return, or whether an employer can require an employee to undergo a full medical examination before returning from FMLA leave. This scenario often arises where the employer has concerns about whether the employee is mentally fit to return to work, although the concern is properly raised whenever there are legitimate reservations about whether the employee can perform the duties of the job.
In these situations, I have counseled employers to require the employee returning from FMLA leave to undergo a medical examination (pursuant to the ADA) if the employer has a reasonable belief that the employee’s ability to perform essential job functions are impaired by a medical condition or that he or she will pose a direct threat due to a medical condition.
Now, we have a real-life court case to back up my suggestions. [Phew! And here I've been flying by the seat of my pants this entire time!]
Here are the quick facts: Susan was a district attorney investigator for the Los Angeles County District Attorney’s Office. In her role, she served arrest warrants, made arrests, interrogated suspects, and booked prisoners. After the death of her brother-in-law, Susan began experiencing bouts of depression, which she attempted to control with medication. Her behavior still was quite erratic at times, as she suffered from high highs and low lows. On two separate occasions, her superiors questioned her judgment when executing various search warrants and performing other safety-sensitive work. She also appeared nervous when performing her work and had recently pointed her fake weapon at other team members during a tactical training session, which was a no-no.
Susan later approached her boss and informed him that she would need to take one month off work. She began crying and stated that she “needed to get better.” She anticipated being in the hospital for two weeks, followed by two weeks of outpatient treatment. Afterward, the DA’s office granted her leave. On her FMLA medical certification form, in response to the question, “Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions?” her psychiatrist wrote, “Unknown.”
Upon expiration of Susan’s FMLA leave, the DA’s office returned Susan to work — but it immediately placed her on a leave of absence pending a medical examination to confirm that Susan could “perform the duties of [her] job satisfactorily and without undue hazard” to her or others. Susan refused to appear twice for an evaluation because she believed it violated her FMLA rights, since she felt she should have been restored solely on the basis of her own doctor’s fitness for duty determination. She later sought a court injunction to halt the medical examination.
Finding that Susan had been provided all rights afforded to her under the FMLA, a California state court dismissed her FMLA claims. The court determined that Susan had been provided all 12 weeks of leave and restored to work. Thus, the employer didn’t interfere with any FMLA rights, since Susan’s FMLA protections ended once she returned to work. At that point, the ADA took over, and the employer had the right to require a medical examination under the ADA (at the employer’s expense) by the employer’s health care provider because the examination was job-related and consistent with business necessity.
As the court pointed out, even the Department of Labor takes the position that the employer can require a medical examination under the ADA once the employee has returned from FMLA leave. Notably, in the preamble to the 2008 changes to the FMLA regulations, the DOL stated in no uncertain terms:
the Department intends to make clear that, once an employee returns to work and is no longer on FMLA leave, an employer may require a medical exam under the guidelines and restrictions imposed by the ADA. At that point, the FMLA’s fitness-for-duty regulation no longer applies. (73 Fed. Reg. 67934-01, 68036.)
Insights for Employers
The court’s guidance gives employers a road map we clearly can follow: before the employee’s return to work from FMLA leave, the employer must accept the employee’s health care provider’s certification and return the employee to the same or equivalent position; after the return to work (and I mean immediately upon return), FMLA protections no longer apply, and the employer may immediately place the employee on a leave of absence and require a medical examination pursuant to the ADA. In doing so, the employer need not ignore pre-FMLA leave events when assessing the fitness for duty of an employee who has returned from an FMLA leave. As stated above, the employer need only have some objectively reasonable basis for the examination independent of the FMLA leave itself. White v. County of Los Angeles (pdf)
But beware: independent medical examinations will not be appropriate in every case. In fact, they won’t be necessary in the far run of situations. But if it is, the employer should be ready to demonstrate that the employee’s condition “impacted, or posed a risk to, the employee’s work.” Here, the inquiry was straightforward, since Susan’s job required her to carry a gun and the court found that her depression itself was sufficient to justify the additional medical examination.
Finally, for our California friends: although the court decision addressed only issues arising under the FMLA and ADA, the court’s reasoning seemingly would apply to similar issues covered under the California Family Rights Act (CFRA) and the fitness for duty obligations under the California Fair Employment and Housing Act. (However, beware of these acts’ prohibitions against unlawful medical inquiries.)