When an employee goes out on an approved medical leave and returns to work following the leave, employers sometimes question whether the employee is ready to return to the workplace. Most employers correctly request a release from the employee’s own medical provider confirming that the employee is released to return to work. But what should an employer do when the employer has knowledge of facts or circumstances that cause the employer to question the employee’s fitness for duty? A recent California court decision concludes that requesting a fitness for duty examination after an employee returns from an approved FMLA leave is within an employer’s purview and does not violate the employee’s FMLA rights, so long as the fitness for duty exam is job-related and based on business necessity.
In White v. County of Los Angeles, the employee was employed as an investigator for the district attorney’s office. The employee requested a medical leave under the FMLA for her mental health. Prior to the FMLA leave, there were a series of incidents that raised concerns about the employee’s conduct and ability to perform. The County granted the employee’s medical leave, which was extended at least once at her request. When the employee informed the County she was ready to return to work and provided a note from her medical provider releasing her to return to work, the County reinstated her to her position but placed her on paid leave while they investigated the employee’s conduct issues that occurred before the FMLA leave. In addition, the County requested that the employee submit to a fitness for duty exam. The employee refused to participate in the fitness for duty exam and took the position that the FMLA required that she be reinstated to her former position based on her own medical provider’s release and that the fitness for duty exam interfered with her FMLA rights. In addition, the employee sought and obtained an injunction against the County prohibiting it from requiring the fitness for duty exam.
The appellate court reversed the injunction prohibiting the County from requiring the fitness for duty exam and also rejected the employee’s argument that the fitness for duty exam amounted to interference with her FMLA rights. The court reasoned as follows:
There is a second reason we reject White’s arguments . . . that a single health care provider’s opinion (i.e., that of the employee’s health care provider) that an employee can return to work from a particular illness or disability is conclusive, and cannot subsequently be questioned by the employer in a FFDE. Public policy rebels at such a thought. The FMLA itself acknowledges that medical professionals can disagree on whether an employee’s serious health condition renders the employee unable to work; it provides for a second opinion on whether an employee qualifies for FMLA leave (29 U.S.C. § 2613(c)) and a third opinion if the first and second opinions are not in agreement (29 U.S.C. § 2614(d)). As such, it is unlikely that Congress intended an employee’s health care provider’s opinion to be conclusive on the employee’s fitness for work. Instead, 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.
There are a number of key points to remember when analyzing whether an employer may defensibly request a fitness for duty exam.
First, in this case, the County did not request the fitness for duty exam until after it had reinstated the employee to her position, although the County immediately placed her on paid leave following that reinstatement. The court considered this fact important. So, if you are contemplating making the request for a fitness for duty exam of a returning employee, make sure you go through the steps, even if only administrative, of reinstating the employee before you request the fitness for duty exam. If you doubt the employee’s fitness for duty, you will likely want to place them on paid leave, or potentially at a desk job if the fitness for duty relates to physical ability, while you wait for the exam to occur.
Second, make sure you review the ADA and FEHA rules regarding medical inquiries of current employees. Both statutes and the accompanying regulations have specific language worth reviewing in each instance to make sure your facts fall within the requirements. At a minimum, the exam must be job-related and consistent with business necessity.
Third, make sure you have a sound, objective reason for doubting the employee’s own medical provider’s release to return to work.
Fitness for duty exams are appropriate in some circumstances but should not be used without real analysis of the legal risks and next steps.