EMPLOYERS MAY REQUIRE A FITNESS FOR DUTY EVALUATION AFTER AN EMPLOYEE IS REINSTATED FROM AN FMLA LEAVE
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 of White v. County of Los Angeles, which held an employer is not permitted to seek a second opinion regarding an employee’s fitness for work after restoring the employee to employment. On appeal, the Court reversed, stating an employer may, at its own expense, seek its own evaluation of the employee’s fitness afterreinstating the employee.
White had asserted that, after her reinstatement from Family and Medical Leave Act (FMLA) leave, the County of Los Angeles (employer) 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.
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; 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 ADA.”
Facts
“Plaintiff Susan White is employed as a Senior District Attorney Investigator with the Los Angeles County District Attorney’s Office (DA). The essential functions of her job include personally serving arrest warrants, making arrests, interrogating suspects, and booking prisoners. The position requires peace officer status under Government Code section 1031.”
Gov. Code section 1031 states, in part, “Each class of public officers or employees declared by law to be peace officers, shall meet all of the following minimum standards: (f) Be found to be free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.”
White requested to be placed on medical leave pursuant to the FMLA after experiencing severe psychological and emotional episodes both on and off the job. These episodes caused White to subject herself to compromising situations, in addition to potentially placing her colleagues in harm’s way. The impairments began after her brother’s death in late 2009 and continued until April 2011, at which time she requested the FMLA leave.
Pursuant to the FMLA, “an eligible employee is entitled to a total of 12 workweeks of leave because of a serious health condition that renders the employee unable to perform the functions of the employee’s position. [29 U.S.C. sec. 2612(a)(1)(D)] The leave may be unpaid.”
White was put on FMLA leave and consulted her psychiatrist who, on May 13, 2011, completed a “Certification of Health Care Provider” indicating that White is “severely depressed despite medications.”
Her FMLA leave of 12 weeks expired on August 5, 2011, at which time she was “placed on unpaid, but authorized, medical leave.” The psychiatrist ultimately predicted that “White would be able to return to work and perform her essential job functions on September 7, 2011.”
On September 6, 2011, White returned to work and was reinstated to full pay pursuant to FMLA. 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.
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.
The Superior Court agreed with White and “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 Superior Court issued a permanent injunction “preventing the DA from requiring a medical reevaluation of White based on her conduct prior to September 7, 2011, or from charging her with insubordination for failing to comply with the medical reevaluation. A writ of mandate was also issued, in similar terms. The DA filed a timely notice of appeal. On motion, White was awarded $55,080 in attorney fees. The DA also filed a timely notice of appeal from the attorney fee award.”
Discussion
The Court of Appeal stated that the underlying issue for it to decide was “whether, if the employer is not satisfied with the employee’s health care provider’s certification, the employer may restore the employee to work, but then seek its own evaluation of the employee’s fitness for duty at its own expense.” The Court concluded that it may.
“There are five elements for a prima facie case of interference with [FMLA] rights. The employee must establish that: (1) he was eligible for the FMLA’s protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled.”
“The 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 evaluation prior to reinstating the employee.
However, the Court held that, in accordance with FMLA, White wasreinstated to her original position, at full pay. The request for a medical reexamination was to determine her fitness for continuedemployment.
The Court 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. The ADA states that after an employee returns from FMLA leave, any medical examination requested by the employer’s health care provider must be job-related, consistent with business necessity, and be done at the employer’s expense.
Pursuant to Gov. Code Section 1031, referenced above, “a peace officer’s mental and emotional condition is to be evaluated by a psychiatrist or psychologist with five years’ experience in the diagnosis and treatment of emotional and physical disorders, and who has met education and training procedures set forth by the California Commission on Peace Officer Standards and Training designed for the conduct of preemployment psychological screening of peace officers.”
In this case, there was concern on the part of the employer about White’s certification. It was unclear if White’s psychiatrist had the necessary experience and training required under Section 1031 to perform an evaluation.
However, 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 “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.”
“Moreover, it is appropriate, and not in violation of the ADA, for a peace officer with mental health issues to be ordered to a FFDE. It is unnecessary for the employer to establish that the employee’s job performance has actually suffered in order to require a FFDE, when the employee in question is a peace officer who carries a weapon.”
HOW THIS AFFECTS YOUR AGENCY
This case distinguishes the protections afforded an employee under the FMLA and the ADA. The Court makes clear that, while the employee is on FMLA leave the employer is governed by FMLA and its protections of the employee. Once the employee receives a medical certification from the employee’s physician, the employer must, per FMLA, rely on that certification and reinstate the employee.
However, once reinstated the ADA protections control, and they allow an employer to seek a subsequent medical examination, at its own expense, where the employer has concerns regarding the certification or the employee’s ability to continue work. This is particularly true where the employee is a peace officer and carries a weapon.
It is important that the employer be able to articulate justification for the FFDE and comport with the ADA requirements allowing for a FFDE. In addition, any personnel investigation, regarding possible misconduct, can proceed notwithstanding the pending FFDE.
As with all legal issues, it is imperative to confer with your agency’s designated attorney for advice and guidance. However, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney – client relationship