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Fitness for Duty Evaluations

Employer May Require a Re-Evaluation Under the ADA after Employee’s Return from FMLA Leave

 

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When an employee takes leave under the Family and Medical Leave Act (FMLA), the employee is entitled to reinstatement upon certification by the employee’s health care provider that the employee is fit to return to work.  An employer is not permitted to require a second opinion before reinstating the employee to work.  However, once the employee returns to employment, an employer may seek a ‘reevaluation’ under the Americans with Disabilities Act (ADA).  The ADA requires that any medical examination be job-related and consistent with business necessity.  Moreover, any examination required by the employer must be at the employer’s expense.

In White v. County of Los Angeles, 225 Cal. App. 4th 690 (2014), DA investigator Susan White was certified to return to work from FMLA leave by her healthcare provider.   Her employer, the Los Angeles County District Attorney’s Office (DA), sought a second opinion regarding her fitness for work prior to returning Ms. White to employment.  Ms. White sued for injunctive relief prohibiting the DA from requiring her to appear for a medical reevaluation or disciplining her for failing to appear.  The district court ruled that the employee must be permitted to return to employment when their health care provider certifies they are able to resume work.

On appeal, the California Appellate court held that allowing the employee to return to work from FMLA leave does not preclude the employer from subsequently requiring a second opinion in the form of a fitness for duty evaluation.  An employee whose health care provider certifies them to return to work is entitled to be restored to employment, nothing more.  The employer is then permitted to seek a fitness for duty evaluation so long as the medical examination is job-related and consistent with business necessity as required by the ADA.

The Appellate Court directly cited to the 2008 comments to the Department of Labor’s revisions:

“An employer may not require that an employee submit to a medical exam by the employer’s health care provider as a condition of returning to work. A medical examination at the employer’s expense by an employer’s health care provider may be required only after the employee has returned from FMLA leave and must be job-related and consistent with business necessity as required by the ADA.  Thus, if an employer is concerned about the health care provider’s fitness-for-duty certification, the employer may, consistent with the ADA, require a medical exam at the employer’s expense after the employee has returned to work from FMLA leave as stated in paragraph (h) in the final rule. The employer cannot, however, delay the employee’s return to work while arranging for and having the employee undergo a medical examination.” (73 Fed.Reg. 67934–01, 68033 (Nov. 17, 2008).[/vc_column_text][/vc_column][/vc_row]

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