California Court of Appeal: Fitness for Duty OK after Reinstatement from FMLA Leave

Susan White was an investigator for the LA County District Attorney. She makes a number of errors and acted erratically over the course of several months.  She was making her co-workers nervous about her judgment. She was in a dangerous job, sometimes involving arrest warrants and the like.  She had problems giving testimony at trials, resulting in a defense lawyer filing perjury charges against her.

In 2011, White sought a month of medical leave for her own health condition: her mental health problems.  She provided medical certification and the DA approved her leave under the Federal Family and Medical Leave Act. The court's opinion does not mention the California Family Rights Act.   

Stop me if you've heard this before.  As it turned out, White's doctor was a little overly optimistic about the duration of leave. He extended and extended the leave until the FMLA period expired. The 12 weeks of FMLA were up in August. 

White's doctor finally wrote that she could return to work in September 2011.   The County approved the extended leave.  Then, in September, the County reinstated White to her job, but assigned her to paid leave at home. They had to investigate the misconduct alleged against her before she left. 

The County also required White to attend a fitness for duty examination.  White refused to attend, claiming that the FMLA required her to be reinstated without anything other than her health care provider's certification. 

White sought an injunction against the district attorney, who had sought her medical examination. The trial court granted the injunction, but the Court of Appeal reversed. 

The appellate court said that the County was required to reinstate White to her job upon expiration of the leave based only on her own doctor's certification.  But the court said that the County did just that.

The fitness for duty was to occur after the reinstatement.  White argued that requiring her to undergo this examination was tantamount to interference with her FMLA rights. But the court of appeal was having none of it. 

The court held the County was justified under the ADA to conduct a fitness for duty examination that was job-related and consistent with business necessity. Here, White had engaged in odd behavior in a job requiring good judgment to avoid serious injuries or death.  There was little doubt that the County had the right to examine her under the ADA.  

Here is the money quote:

There is a second reason we reject White’s arguments . . . that a single health care provider’s opinion (i.e., that of the employee’s health care provider) that an employee can return to work from a particular illness or disability is conclusive, and cannot subsequently be questioned by the employer in a FFDE. Public policy rebels at such a thought. The FMLA itself acknowledges that medical professionals can disagree on whether an employee’s serious health condition renders the employee unable to work; it provides for a second opinion on whether an employee qualifies for FMLA leave (29 U.S.C. § 2613(c)) and a third opinion if the first and second opinions are not in agreement (29 U.S.C. § 2614(d)). As such, it is unlikely that Congress intended an employee’s health care provider’s opinion to be conclusive on the employee’s fitness for work. Instead, the FMLA should be interpreted to render the employee’s health care provider’s opinion conclusive on the issue of whether the employee should be immediately returned to work, but to permit the employer to thereafter require a FFDE, if it has a basis to question the employee’s health care provider’s opinion.

So, takeaways:

- reinstate to the original position first; then request the examination

- have an objective reason to doubt the medical certification's clearance to return to work.

- ensure a medical fitness for duty complies with the ADA and FEHA's prohibitions against unlawful medical inquiries.

- if an employee's leave request comes during an employer's investigation into potential misconduct, it is ok to follow through with the investigation when the leave is over.

This case is White v. County of LA and the opinion is here. 

California Chamber's Job Killer List - Employment Law

Contrary to what you may think, the California Legislature has not finished perfecting the laws governing the California workplace.  But, they persevere.

Our friends at the California Chamber of Commerce track the bills  they affectionately call "job killers."   Sure, more employment laws might drive up costs, reduce competition, increase unemployment, and increase prices.  Never you mind that. These bills give me more to complain advise employers about in the months to come.  And more lawsuits are sure to follow.  So, these bills really are  job creators.  For lawyers.

The Chamber's list of pending California employment law job killers are summarized here.  The description is the Chamber's. You can read the bill and check its status by clicking the links.

Please note:  1.  This is not a complete list of pending employment bills; only the California Chamber's job-killer list.  2. These bills are still wending their way through the Legislature. So, they could fail to pass or the Governor might not sign them even if they do pass.  

• AB 1522 (Gonzalez; D-San Diego) Paid Sick Leave — Increases employer mandates by requiring all employers, large and small, to provide all employees in California with paid sick leave, and threatens employers with statutory penalties as well as litigation for alleged violations.

• AB 2604 (Brown; D-San Bernardino) Exposes Employers to Disproportionate Workers’ Compensation Penalties — Dramatically increases penalties and costs for delayed payments and will result in disproportionate penalty awards that are significantly greater than the amount of the delayed payment.

• SB 935 (Leno; D-San Francisco) Minimum Wage — Unfairly increases employer costs by increasing the minimum wage to $13 by 2017 and then increased thereafter according to the Consumer Price Index.

• AB 2416 (Stone; D-Scotts Valley) Unproven Wage Liens — Creates a dangerous and unfair precedent in the wage and hour arena by allowing employees to file liens on an employer’s real or personal property, or property where work was performed, based upon alleged yet unproven wage claims.

• AB 2617 (Weber; D-San Diego) Interference with Arbitration Agreements and Settlement Agreements— Unfairly prohibits the enforcement of arbitration agreements or pre-litigation settlement agreements that require the individual to waive their right to pursue a civil action for the alleged violation of civil rights.

• SB 404 (Jackson; D-Santa Barbara) Expansion of Discrimination Litigation — Makes it virtually impossible for employers to manage their employees and exposes them to a higher risk of litigation by expanding the Fair Employment and Housing Act to include a protected classification for any person who is, perceived to be, or associated with an individual who provides medical or supervisory care to a listed family member.

There are several other job-killers not directly related to employment law. The entire list of job killer bills is here.