Employer Can Require Fitness-For-Duty Examination After Return From FMLA Leave

by Fenwick & West LLP

A California appeals court in White v. County of Los Angeles held that an employer could require a fitness-for-duty examination after returning an employee to work based on her medical provider’s certificate, provided that the exam is job-related and consistent with business necessity.

Susan White was an investigator with the Los Angeles County District Attorney’s Office, and she carried a firearm as part of her job (which included making arrests, interrogating suspects, booking prisoners, and serving arrest warrants). From late 2009 through mid-2011, White exhibited strange behavior at work — she experienced erratic and emotional highs and lows, made various tactical errors that jeopardized the safety of herself and her co-workers, and provided inconsistent and inaccurate testimony in connection with a criminal case to which she was a witness. She also referred to herself as a “whack job,” admitted she was on medication for her psychological condition and that it made her feel “stupid,” and cried in multiple meetings with her supervisor. In April 2011, White requested medical leave for treatment. Upon exhausting her FMLA leave, the County granted her leave under the ADA. White’s doctor provided a letter allowing her to return to work on September 7, 2011.

The County returned White to work effective September 7, 2011, but assigned her to her home for medical reasons and placed her on paid administrative leave. Thereafter, per applicable Civil Service Rules, the County requested that White undergo a medical reevaluation. White failed to appear on two separate occasions for the evaluation, and then sought a court injunction prohibiting the exam and preventing the County from disciplining her for failing to appear. The court granted the injunction and the County appealed.

White argued that the reevaluation constituted interference with her FMLA rights, but the appellate court disagreed. First, it recognized that employees are entitled to reinstatement from FMLA leave upon certification by the employees’ healthcare provider. Second, it acknowledged that an employer cannot seek a fitness-for-duty examination before reinstating the employee. Third, it stated that after an employee returns from a medical leave, the ADA requires that any medical exam conducted by the employer must be (1) at its expense, (2) job-related, and (3) consistent with business necessity.

Here, the court held that there was no violation of the FMLA, and that the County could conduct the reevaluation, because the ADA (not FMLA) governed since White had been returned to work. The County satisfied the requirements under the ADA since the exam was job-related and consistent with business need given her role at the County, which included carrying a firearm, and because White had put herself and others in danger, made poor tactical decisions, and provided inaccurate testimony in a criminal case. The court did note that an employer cannot delay an employee’s return to work while arranging for and having the employee undergo an exam.

Employers should be careful when deciding to conduct medical examinations to ensure compliance with various disability and leaves of absence laws.


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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