Reevaluation Allowed as long as Job-Related and Consistent with Job Necessity
A California Court of Appeal recently held that the Los Angeles County District Attorney’s Office’s (DA) decision requiring an investigator who returned to work after a leave to submit to a fitness-for-duty-examination (FFDE) did not violate the Family and Medical Leave Act (FMLA) and was permitted under the Americans with Disabilities Act (ADA). This case reassures employers that they may require an employee’s medical reevaluation after he or she returns to work following FMLA leave when the employer is unsatisfied with the employee’s health care provider’s certification, so long as the reevaluation is job-related and consistent with job necessity.
In April 2011, Susan White, a senior district attorney investigator, requested time off to undergo medical treatment arising from depression. After she returned to work, the DA ordered White’s reevaluation to review her medical condition because of her history of erratic conduct in the workplace prior to her leave. White filed suit against the County claiming the reevaluation would violate her restoration to employment right under the FMLA.
On appeal, the court determined that, after the employee returns, the FMLA regulation prohibiting reevaluation no longer applies and the employer may require an FFDE. The court determined that the County was not prohibited from ordering White’s reevaluation due to job performance issues that existed prior to her FMLA leave period. For more than a year prior to her leave, White made poor tactical decisions during trainings, placed herself and her team in danger while executing search warrants, and provided unprofessional and possibly false testimony while testifying in court. Although White was restored to her employment following her leave, the DA was not satisfied with White’s physician’s certification and ordered White’s reevaluation to determine if she could competently perform the required job duties.
The court reasoned that FMLA is interpreted to render the employee’s health care provider’s opinion conclusive on the issue of whether the employee should immediately return to work. However, the employer is not prohibited from requiring a medical exam, at the employer’s expense, as long as the employer has a basis to question the employee’s health care provider’s opinion. Furthermore, where the employee is a peace officer who carries a weapon, the court reasoned that the FFDE is not a guarantee of the statutory requirement (Government Code section 1031) that a peace officer must be “free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.”