Post-FMLA exam is OK–after reinstatement

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in FMLA Guidelines,Human Resources

Before approving FMLA leave, an employer can require medical certification of the need for leave. But when it’s time for the employee to return from leave, employers can’t demand additional evaluations beyond the certification a doctor supplies showing the employee is ready to resume work.

But what if the employer worries that the employee really can’t perform her job? In that case, the correct approach is to reinstate the worker but insist on a medical exam that is both job-related and consistent with business necessity. Such exams are legitimate—under the ADA.

Recent case: Susan, an investigator with the Los Angeles County District Attorney’s Office, began having problems with depression and mood swings. She wound up needing FMLA leave for intensive treatment. When her leave was up, her doctor certified that she was ready to resume working with no restrictions.

The DA’s office reinstated Susan, but ordered her to have a fitness-for-duty medical examination because she had behaved erratically on duty before she went on FMLA leave. She refused and was fired for insubordination.

She sued, alleging that requesting the medical exam violated her right to reinstatement under the FMLA.

A California appeals court dismissed Susan’s lawsuit. It reasoned that as long as the employee is reinstated before the employer requests the medical exam, there’s no FMLA violation despite the law’s specific ban on second opinions. The court said the ADA covered Susan’s exam, since it was job-related and consistent with business necessity. (White v. County of Los Angeles, No. B243471, Court of Appeal of California, 2nd Appellate District, 2014)

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