White v. County of Los Angeles, B243471 (April 15, 2014): In a recent decision, the California Court of Appeal held that an employer can seek a second opinion of an employee’s fitness for duty after the employee returns from leave under the Family and Medical Leave Act (FMLA). In reversing a lower court’s decision, the Court of Appeal found that an employer that is not satisfied with the certification from the employee’s physician can restore the employee to work and then obtain its own evaluation of the employee’s fitness for duty.

Susan White worked as a Senior District Attorney Investigator for the County of Los Angeles—a position that had peace officer status. Her job involved personally serving arrest warrants, making arrests, interrogating suspects, and booking prisoners. In late 2009, White began experiencing emotional difficulties after the death of her brother-in-law. Over the next year, White showed erratic behavior during law enforcement operations on a number of occasions. These incidents raised concerns with her supervisors.

In June 2011, White took leave under the FMLA to undergo treatment for severe depression. At the end of the leave (which exceeded 12 weeks), White’s physician released her to return to work. The county restored White to her position but, in light of her unstable behavior prior to her leave, requested a second opinion as to White’s fitness for duty. White refused to attend the evaluation, alleging that a second evaluation violated her rights under the FMLA. She filed a lawsuit to prohibit the county from requiring the evaluation.

The lower court found that the county was barred from ordering a reevaluation of White based on her conduct prior to her FMLA leave. The lower court stated that the certification from White’s physician that she is fit to return to work must be accepted as sufficient. The county appealed the decision.

The Court of Appeal reversed the lower court’s decision, finding that “a medical examination at the employer’s expense by an employer’s health care provider may be required [but] only after the employee has returned from FMLA leave and must be job-related and consistent with business necessity as required by the ADA.” The appellate court reasoned that once the employee returns to work and is no longer on FMLA leave, an employer can require a medical evaluation pursuant to the guidelines of the Americans with Disabilities Act (ADA).

According to Thomas M. McInerney, the managing shareholder of the San Francisco office of Ogletree Deakins: “This case examines the difficult tension that often arises for employers between the application of the FMLA and the ADA. While the FMLA does not allow second or third opinions when an employer receives a ‘fitness for duty’ certification from a returning employee’s physician, the ADA does allow for second opinions, at the employer’s expense, when there is a question as to whether the employee is a qualified individual able to perform the essential functions of the job. Here, the court struck the right balance and held that the employee should be immediately returned to work, but permitted the employer to require a fitness-for-duty evaluation to ensure that the employee could perform the key functions of the job.”

McInerney continued, “Although this case arose under federal law, the California Family Rights Act rules for fitness-for-duty reports are substantially similar to the FMLA’s requirements, so the procedure should be similar under California law as well.”

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