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. 

9th Circuit - Employee Can Opt out of FMLA, Even at Her Peril

Maria Escriba found out her dad was ill in Guatemala.  She told her bosses at Foster Poultry Farms that her father was sick.  But she asked to use two weeks'  vacation time to visit. She did not request FMLA leave.  She said "no" when the company asked her if she needed more than two weeks' vacation time.  She took more than two weeks off anyway. She was discharged under the no-call / no-show policy.

Her argument was that she did not have to request FMLA leave.  The employer should have designated all her time off as FMLA time, protecting her from discharge.   She exhausted the vacation time, did not request FMLA leave, did not ask for an extension, did not have her husband ask for an extension (although he worked for the same employer), and so, was no-call no show.  Even the union figured she'd be fired.  The union was right.

Escriba then sued under FMLA and analogous California law, the California Family Rights Act.
The district court let her claims go to the jury. After a "short" deliberation, the jury found for the employer.  The key issue at trial and on appeal was whether Escriba's time off qualified as FMLA, even though she declined FMLA.   The Court analyzed the issue:

Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave. The employer could find itself open to liability for forcing FMLA leave on the unwilling employee. See, e.g., Wysong v. Dow Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007) (noting that “[a]n involuntary-leave claim,” alleging that an “employer forces an employee to take FMLA leave,” is “really a type of
interference claim”). We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. See, e.g., Ridings v. Riverside Med. Ctr.537 F.3d 755, 769 n.3 (7th Cir. 2008) (“If an employee does not wish to take FMLA leave but continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified.” (emphasis added)).

The Court also upheld the jury's conclusion that Escriba indeed declined to use FMLA. There was evidence at trial that she wanted to preserve her FMLA entitlement. And she knew the ropes, apparently, because she had sought FMLA leave on 15 previous occasions

there is substantial evidence that Escriba elected not to take FMLA leave. After Linda Mendoza’s initial meeting with Escriba on November 19, 2007, Mendoza met with Escriba and an interpreter, twice asking if Escriba needed more time in Guatemala. Escriba twice answered “no.” Mendoza testified that she then told Escriba to visit the Human Resources Department if she later decided to request more than two weeks of leave.

This decision is good for employees, too.  For example, if a pregnant employee wishes to use vacation to care for a parent so she can preserve 12 weeks of FMLA for baby bonding, should she be able to do so?  See?

This case is Escriba v. Foster Poultry Farms, Inc. and the opinion is here.