Court of Appeal: Employer's Fitness for Duty Examination Was Justified to Evaluate Workplace Threat

Professor John Kao engaged in a series of confrontations with other academics at University of San Francisco over time.  His co-workers became afraid of him.   He angrily responded to innocuous questions, and became enraged at colleagues over seemingly benign interactions.

So, the University began investigating.  It retained some specialists in workplace violence and threat assessment.  The experts recommended that Professor Kao be examined by a professional, who would render a "fitness for duty" opinion.  The University explained to Kao that he had to submit to the fitness for duty, or be placed on a leave of absence and excluded from the premises.  The University explained in detail the requirements of the FFD exam, including strict limitations on the expert evaluator's dissemination of information about Kao's condition.

Kao's lawyer got involved, and objected to the FFD.  As a result, the University placed Kao on a leave.   There were further meetings and exchanges with Kao's counsel, the faculty's union representative, and the University, to no avail.  The University then agreed to arbitration - under which the University would be bound, but Kao would not (!).  But Kao objected and would not agree to any ADR and would not submit to the exam.  Kao's attorney wanted to have a "clear the air meeting," at which Kao would assure the University he meant no harm.   The University ultimately terminated Kao's employment, about a year after all the problems started.

Kao sued for disability discrimination and defamation, among other things. A jury rejected Kao's claims and he appealed.

Kao argued at trial that the FFD was a medical examination.  Under the Fair Employment and Housing Act, a medical examination of an employee is permissible if "job-related and consistent with business necessity."  And Kao argued that the FFD could not be job-related or necessary without the University's first engaging in the "interactive process" that is part of the "reasonable accommodation" process.

The Court of Appeal rejected that argument. First, the court noted that the FFD is not an accommodation, and the interactive process relates to the accommodation process.   Second, the court noted that Kao was required to initiate the interactive process, not the University:

Unless a disability is obvious, it is the employee’s burden to initiate the interactive process. (Gelfo v. Lockheed Martin Corp (2006) 140 Cal.App.4th 34, 62, fn. 22; 2 Wilcox, Cal. Employment Law (2013) § 41.51[3][b], p. 41-278.) Kao cannot plausibly claim it should have been obvious to USF that he was disabled because he never admitted any disability in the workplace. When a disability is not obvious, the employee must submit “reasonable medical documentation confirm[ing] [its] existence.” (Cal. Code Regs., tit. 2, § 11069, subd. (d)(2).) Kao did nothing of the sort. He provided no information to USF after learning of the university’s concerns other than documents at the October 2008 meeting with Philpott, which were aimed at showing that those concerns were illusory.

The court concluded that no interactive process was necessary.  For those of you wondering what "job-related and consistent with business necessity means," the court quoted from the jury instruction:

The jury was instructed in accordance with Government Code section 12940, subdivision (f): “ ‘John Kao claims that the university wrongfully required a medical and psychological examination (fitness-for-duty or FFD). [¶] . . . The University of San Francisco asserts that the medical or psychological examination (fitness-for-duty or FFD) request was lawful because it was necessary to the university’s business. To succeed, the university must prove both of the following: 1, that the purpose of the FFD was to operate its business safely and efficiently; and 2, that the FFD would substantially accomplish this business purpose. [¶] . . . If the university proves that the FFD is necessary to the university’s business, then the FFD is lawful unless John Kao proves both of the following: 1, that there was an alternative to the FFD that would have accomplished the university’s business purpose equally well; and 2, that the alternative would have had less adverse impact on John Kao.’ ”

The Court also rejected Kao's claim that the University fired him for not releasing his medical records in violation of California's Confidentiality of Medical Information Act.  The Court approved of the instruction to the jury that the University avoided liability if the jury found that the University fired Kao for refusing a lawful fitness for duty exam.

The Court upheld the trial court's granting of "non-suit" on Kao's defamation claim.  The claim was based on HR's sharing of a letter detailing Kao's conduct in connection with the FFD examination request.  The Court agreed that the "common interest" privilege applied and there was not evidence of the "malice" required to defeat the privilege.

Finally, the Court ruled that the University was entitled to put on evidence of available employment to Kao, even outside the context of a tenured University professor job.  That is important to the argument regarding mitigation of damages.   The Court of Appeal said it was up to the jury to decide if the comparable replacement employment was sufficiently similar.

This case is Kao v. University of San Francisco and the opinion is here.

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.