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.
