Employers have long been denied the opportunity to request a second opinion on an employee’s ability to work before returning from Family and Medical Leave Act (FMLA) leave. However, in California, an employer is permitted to request a fitness-for-duty examination and certification after the employee is permitted to return to work. So long as it is paid for by the employer and coupled with a legitimate reason for the employee to do so.
In White v. County of Los Angeles, the employee was a peace officer. The job included serving criminal warrants, making arrests, booking prisoners, and carrying a weapon. While working as a peace officer, she exhibited erratic behavior, including placing herself in potential cross-fire, and showed difficulty controlling her emotions with citizens and fellow peace officers – colleagues, subordinates, and supervisors.
After taking a FMLA leave for depression and emotional treatment, the employee returned to work based on her own doctor’s certification. But immediately upon her return, the County delayed returning her to her regular duties. Rather, the County placed her on paid home assignment pending a fitness-for-duty evaluation by the employer’s physician. The employee refused to undergo a second examination, saying it was prohibited by the FMLA.
In its decision, the court held that Ms. White had been returned to work as required by FMLA. And as she had been reinstated to her former position, the employer could require a further fitness examination at its own expense. Relying on FMLA regulations, the court said that an employer could require further examination when concerned about a return-to-work certification if “job related and consistent with business necessity” (this is required under the Americans with Disabilities Act). The court stated that this rule applies “to all employees who have taken FMLA leave” and was particularly applicable to Ms. White, who carried a weapon.
White v. County of Los Angeles gives employers latitude to request further certification after an employee returns from FMLA leave if there is a legitimate reason to question the employee’s physician or there are other job-related concerns. While each case should be considered on its own merits, and while employers should be careful not to differentiate between different types of conditions or employees, the White case offers employers some much-needed flexibility on how to handle an employee returning from leave to go back to a critical position – in the organization or community.