Yesterday, we looked at a recent case from the California Court of Appeals that considered the issue of whether an employer could require its employee to submit to a fitness-for-duty evaluation after it had restored her to her job following an FMLA leave—even though the evaluation involved matters existing before the leave.
The court ruled that the employer could in fact require this fitness-for-duty evaluation. Additionally, while the case involved a peace officer, the court made clear that its ruling applies to all employees who have taken FMLA leave.
For the facts of the case, click here.
The relevant law
According to the Court of Appeals, the employee was pursuing a claim for interference with her FMLA rights:
- The employee was eligible for the FMLA’s protections;
- The employer was covered by the FMLA;
- The employee was entitled to leave under the FMLA;
- The employee provided sufficient notice of the intent to take leave; and
- The employer denied the employee FMLA benefits to which he or she was entitled.
The court noted that employer intent is irrelevant to a determination of liability for interference.
The first four elements were indisputably satisfied in this case, so the question was whether the DA denied the employee FMLA benefits to which she was entitled.
The court found the DA granted her the full 12 weeks of FMLA leave and reinstated her to employment on the certification of her doctor. The sole issue, then, was whether the order for a medical reevaluation—months after her return to work—violated her FMLA rights.
Master the complex issue of leaves in California once and for all. Learn how here.
Court Allows the Reevaluation
The Court of Appeals referred to the U.S. Department of Labor’s (DOL) FMLA regulations for guidance.
Since 2008, the regulations have stated in a section discussing the return-to-work certification that “[a]fter an employee returns from FMLA leave, the [Americans with Disabilities Act (ADA)] requires any medical examination at an employer’s expense by the employer’s health care provider be job-related and consistent with business necessity.”
The quoted sentence wasn’t included in an earlier version of the regulation. The DOL has explained that the language is intended to establish that once an employee returns to work and is no longer on FMLA leave, the employer can require a medical exam under the ADA’s guidelines and restrictions. “At that point,” the DOL has said, “the FMLA’s fitness-for-duty regulation [prohibiting second or third opinions on a return-to-work certification] no longer applies.”
In other words, before the return to work, the employer must accept the employee’s physician’s certification and return the employee to employment. But after the return to employment, the FMLA protections no longer apply, and the employer can require a fitness-for-duty evaluation consistent with the ADA.
The Court of Appeals further rejected White’s contention that a single healthcare provider’s opinion (that of the employee’s provider) that an employee can return to work from a particular illness or disability is conclusive and can’t be subsequently questioned by the employer in a fitness-for-duty evaluation. “Public policy rebels at such a thought,” the court said.
The court pointed out that the FMLA itself acknowledges that medical professionals can disagree on whether an employee’s serious health condition makes the employee unable to work. The law provides for a second opinion, and sometimes even a third opinion, on whether an employee qualifies for FMLA leave. In light of that provision, the court found it unlikely that Congress intended an employee’s provider’s opinion to be conclusive on the employee’s fitness for work.
Rather, the court said, the FMLA should be read to render the employee’s provider’s opinion conclusive on the issue of whether the employee should be immediately returned to work but to permit the employer to later require a reevaluation if it has reason to question the employee’s provider’s opinion. (White v. County of Los Angeles, Calif. Court of Appeals (Dist. 2) No. B243471, 2014)
The case demonstrates well that employers can benefit from being a bit bolder on FMLA/CFRA certification–of course, that requires really delving into and learning the ins and outs of the law’s parameters.