California Court Upholds Post-FMLA Fitness for Duty Examination in Face of Safety Concerns

by Ballard Spahr LLP
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A California appellate court recently held that, where evidence suggests an employee's medical condition may affect his or her ability to safely perform a job, the employee may be required to undergo a fitness for duty evaluation upon returning to work following leave under the Family and Medical Leave Act (FMLA). The court held that such an evaluation can be required even when the employee already has submitted a doctor's certification approving his or her return to work. The decision may give employers latitude over seeking a second opinion in similar circumstances.

The FMLA requires an employer to restore an employee to his or her previous position upon return from leave and prohibits an employer from obtaining a second opinion regarding an employee’s fitness for duty certification prior to reinstatement. In White v. City of Los Angeles, the California Court of Appeals considered whether the City violated the FMLA when it ordered Susan White, an investigator in the District Attorney’s office, to appear for a medical examination to determine her fitness for duty after she returned from FMLA leave for severe depression. As part of her job, Ms. White enforced warrants, arrested and interrogated suspects, and was required to carry a firearm. The court noted in the factual and procedural background of its opinion that on several occasions in 2010 and 2011, she exhibited erratic and overly emotional behavior on the job, which the City viewed as creating a potential safety risk.

In June 2011, the City approved Ms. White’s FMLA leave request. In September 2011, she submitted a fitness for duty certification from her health care provider, and the City reinstated her as required by the FMLA. Due to continuing concerns about Ms. White’s ability to perform her job safely, however, the City in January 2012 ordered her to undergo a medical examination by the City’s appointed medical provider. These concerns were based entirely on Ms. White's conduct before going out on leave. She refused to appear for the medical examination, which she contended would have violated her right to be restored to her prior employment under the FMLA. The court held that the City's requested investigation did not violate the FMLA in this case.

The court observed that, in the preamble to the 2008 amendments to the FMLA regulations, the U.S. Department of Labor explained that an employer who has concerns about an employee’s fitness for duty may require a medical examination upon the employee’s return to work, so long as the employee’s restoration is not delayed and the examination follows guidelines of the Americans with Disabilities Act (ADA). The ADA requires that any medical examination be job-related and consistent with business necessity.

Consequently, the court held that the City did not violate the FMLA when it returned Ms. White to work but required her to undergo a medical examination because the City's concerns were job-related and supported by the evidence, and the fact that these concerns were based on conduct that predated her FMLA leave did not matter. In so holding, the court recognized but rejected precedent in other jurisdictions predating the 2008 amendments to the regulations, which have held that such medical examinations circumvented the FMLA’s prohibition on seeking second opinions of a fitness for duty certification.

The White decision may give employers a basis for seeking a medical opinion regarding an employee’s fitness for duty (presuming the examination follows ADA guidelines), but the court made clear that examinations would not be appropriate in every case, and an employer seeking to request an examination should be prepared to demonstrate that the employee's condition "impacted, or posed a risk to, the employee's work." In this case, given that Ms. White's job required her to carry a weapon, the court believed that her "depression alone" was sufficient to justify the City's examination.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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