By: Martin J. Mayer, General Counsel- California State Sheriffs’ Association

On April 15, 2014, the California Court of Appeal, Second Appellate District, reversed a judgment by the Superior Court of Los Angeles in the case ofWhite v. County of Los Angeles regarding the Family & Medical Leave Act (FMLA).  The lower court held that an employer is not permitted to seek a second opinion regarding an employee’s fitness for work after restoring the employee to employment following a leave under the FMLA.  On appeal, the Court reversed, stating an employer may, under certain circumstances and at its own expense, seek its own evaluation of the employee’s fitness afterreinstating the employee.

We issued a Client Alert Memo regarding this ruling (see JONES & MAYER website, April 18, 2014, www@jones-mayer.com) and noted that White had asserted that, after her reinstatement from FMLA leave, her employer, the County of Los Angeles was not permitted to require a second medical evaluation to determine her fitness to remain employed as a Senior District Attorney Investigator with the Los Angeles County District Attorney’s Office.  But, the Court of Appeal disagreed.

Relying, in part, on the amendments to the American’s with Disabilities Act (ADA) the Court held that, “(b)efore the return to work, the employer must accept the employee’s physician’s certification and return the employee to employment; [however] after the return to employment, the FMLA protections no longer apply, and the employer may require a fitness for duty evaluation (FFDE) consistent with the Americans’ with Disabilities Act (ADA).”

Following the publication of the Client Alert Memo, we received many questions regarding the responsibilities of the employer under the FMLA. Issues such as who is eligible; what employers are covered by FMLA; when can an employee taking FMLA leave; and so on.  This article will attempt to provide some basic information to assist in answering these, and other, questions.

FMLA Basics

The Family & Medical Leave Act is a federal law passed by Congress in 1993, and is set forth in 29 United States Code 2601 et seq., and 29 Code of Federal Regulations section 825 et seq.  As stated by the U.S. Department of Labor, in its Employment Law Guide: The FMLA provides a means for employees to balance their work and family responsibilities by taking unpaid leave for certain reasons. The Act is intended to promote the stability and economic security of families as well as the nation’s interest in preserving the integrity of families.

A covered employer is any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year. The law also covers all public agencies(state and local governments) and local education agencies (schools, whether public or private) and these employers do not need to meet the “50 employee” test.

To be eligible for FMLA leave, an individual must meet the following criteria:

  • Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;
  • Have worked at least 12 months (which do not have to be consecutive) for the employer; and
  • Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.

The FMLA entitles eligible employees of covered employers to take job-protected, unpaid leave for specified family and medical reasons.  Eligible employees are entitled to:

  • Twelve workweeks of leave in any 12-month period for:
  • Birth and care of the employee’s child, within one year of birth;
  • Placement with the employee of a child for adoption or foster care, within one year of the placement;
  • Care of an immediate family member (spouse, child, parent) who has a serious health condition;
  • For the employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation;
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member (Military Caregiver Leave).

Employees may take FMLA leave intermittently or on a reduced leave schedule (that is, in blocks of time less than the full amount of the entitlement) when medically necessary or when the leave is due to a qualifying exigency. Taking intermittent leave for the placement for adoption or foster care of a child is subject to the employer’s approval. Intermittent leave taken for the birth of a child is also subject to the employer’s approval.

However, employer approval is not required for intermittent or reduced schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered service member. Employer approval also is not required when intermittent or reduced schedule leave is necessary due to a qualifying exigency.

Return to Work

An employer may require that a serious health condition, or a serious illness or injury of a covered service member, be supported by a certification from the employee’s health care provider, the employee’s family member’s health care provider, or an authorized health care provider of the covered service member. An employer may also require periodic reports of the employee’s status and intent to return to work during the leave.

An employee who returns from FMLA leave is entitled to be restored to the same or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. The FMLA does not require pay for time off and the employer may require the use of accrued sick leave, vacation or other paid leave concurrently with FMLA.  The employee may, but is not entitled to, accrue additional benefits during periods of unpaid FMLA leave.  However, the employer must return him or her to employment with the same benefits at the same levels as existed when leave began.


Under certain conditions, an employer may require that an employee who takes FMLA leave, for his or her own serious health condition, submit a certification from the employee’s health care provider that the employee is able to return to work, a “fitness for duty” certification.

In the White case, the 12 weeks expired, at which time she was “placed on unpaid, but authorized, medical leave.”  Her psychiatrist ultimately predicted that “White would be able to return to work and perform her essential job functions on September 7, 2011,” at which time she returned to work and was reinstated to full pay.  However, she was informed that she would be placed on administrative leave, with pay, and reassigned to her home effective September 7, 2011 pending a FFDE by the employer’s physician, as well as an administrative investigation regarding incidents which led to her leave.

White refused to appear for either of the scheduled FFDE physician appointments set by her employer because she believed such a request was in violation of her FMLA rights.  Specifically, White argued that requiring her to submit to the medical reevaluation violated her right under FMLA to be restored to employment on her doctor’s certification alone.

She sued and the Superior Court agreed with White. The court “concluded that the DA would be legally permitted to order a medical reevaluation of White based on any conduct occurring after her return to work, but that her doctor’s certification that she was fit for work upon her return from FMLA leave must be accepted as sufficient.”

The County appealed the decision and the Court of Appeal reversed stating that “(t)he FMLA clearly provides that when an employee has completed FMLA leave, that employee is entitled to reinstatement upon certification by the employee’s health care provider.” Furthermore, there is no right afforded by FMLA allowing the employer to require a second medical evaluationprior to reinstating the employee. However, the Court held that, in accordance with FMLA, White was reinstated to her original position, at full pay and the medical reexamination was to determine her fitness for continuedemployment.

The Court of Appeal analyzed the language of the FMLA in conjunction with the ADA and found that after reinstatement occurs, the FMLA no longer applies and the ADA becomes the governing law.  Pursuant to the ADA, after an employee returns from FMLA leave, any medical examination requested by the employer must be job-related, consistent with business necessity, and be done at the employer’s expense.

White argued that there was no business necessity for her FFDE, on the basis that there is no business necessity unless the FFDE could be justified by events which occurred after she returned from FMLA.  The Court rejected this argument stating that, “If a business necessity exists which would permit the employer to order a medical evaluation under the ADA, the employee cannot avoid the evaluation by simply going on FMLA leave and obtaining a medical certification that she may return to work.  A certification that an employee may return to work from FMLA leave simply requires the employee be reinstated.  It does not erase all the events which occurred before the employee went on FMLA leave.”


There are numerous rules and regulations governing the rights of employees and the obligations of employers under the FMLA.  There is no dispute that all the employee needs to provide, upon returning to work, is a certification from his or her physician stating that he/she is fit to return to duty.  However, once the employee is fully reinstated, if there is justification under the ADA for a FFDE to be conducted, the employer is allowed to order such an evaluation.

The FFDE is not to determine whether or not the employee can return to duty, it is to determine whether or not the employee can continue on the job.  As noted above, it is necessary to meet all ADA requirements to justify a FFDE; the employer cannot merely order one based on the fact that the employee had been off work due to a medical condition.

In addition, the Court of Appeal held that it was appropriate to conduct an internal affairs investigation regarding the conduct which occurred prior to White taking her FMLA leave of absence.  As the Court stated, “FMLA leave simply requires the employee be reinstated.  It does not erase all the events which occurred before the employee went on FMLA leave.”  As with all legal issues, it is imperative that you seek out legal advice and guidance from your designated legal counsel.

Martin J. Mayer is a name partner with the public sector law firm of JONES & MAYER. Mr. Mayer has served as General Counsel to CSSA for the past 30 years.