White v. County of Los Angeles
22 Wage & Hour Cas.2d (BNA) 676, 170 Cal. Rptr. 3d 472, 225 Cal.App.4th 690 (2014)
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Rule of Law:
After an employee has been restored to work following Family and Medical Leave Act (FMLA) leave based on their own health care provider's certification, the FMLA’s fitness-for-duty regulations no longer apply, and the employer may require a subsequent medical examination consistent with the Americans with Disabilities Act (ADA) if it is job-related and consistent with business necessity, even if the basis for the examination relates to pre-leave conduct.
Facts:
- Susan White, a Senior District Attorney Investigator with the Los Angeles County District Attorney’s Office (DA), began exhibiting emotional difficulties and erratic behavior in the workplace around late 2009.
- Throughout 2010 and early 2011, White made poor tactical decisions during operations, displayed nervousness, pointed her fake weapon at teammates during training, and provided unprofessional and factually erroneous testimony in a criminal case (the Kim case), leading to a personnel complaint alleging perjury.
- On May 3, 2011, White informed her supervisor that she needed to take time off for treatment for severe depression and subsequently took FMLA leave from May 16, 2011, through August 5, 2011, which was then extended as authorized medical leave until September 7, 2011.
- On August 18, 2011, White's psychiatrist, Dr. Dirk de Brito, provided a letter certifying White was able to return to work and perform her essential job functions on September 7, 2011.
- On September 6, 2011, White was informed she would be placed on paid administrative leave and reassigned to her home, effective September 7, 2011, due to a separate administrative investigation into the allegations of criminal misconduct related to her testimony in the Kim case; she was restored to full pay.
- On December 7, 2011, the DA requested White undergo a medical reevaluation under Los Angeles County Civil Service Rules, Rule 9.07, citing her aberrant behavior prior to her FMLA leave, which was consented to by the Occupational Health Programs (OHP).
- White was ordered to appear for the reevaluation on January 27, 2012, and again on February 28, 2012, at County expense, but she failed to appear, believing the order violated her rights under the FMLA.
Procedural Posture:
- Susan White filed an action in Los Angeles County Superior Court, seeking injunctive relief or a writ of mandate prohibiting the DA from requiring her to appear for a medical reevaluation or disciplining her for failing to appear.
- The Superior Court (trial court) initially issued a temporary restraining order preventing the reevaluation.
- The Superior Court then issued a preliminary injunction, finding that the balance of harms weighed in favor of White.
- The Superior Court subsequently issued a permanent injunction, preventing the DA from requiring a medical reevaluation of White based on her conduct prior to September 7, 2011, or from charging her with insubordination for failing to comply.
- A writ of mandate was also issued by the Superior Court in similar terms.
- The Superior Court awarded White $55,080 in attorney fees.
- The County of Los Angeles et al. (DA) filed timely notices of appeal from both the judgment (issuing the injunction and writ of mandate) and the attorney fee award to the California Court of Appeal (intermediate appellate court).
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Issue:
Does the Family and Medical Leave Act (FMLA) prohibit an employer from requiring a fitness-for-duty examination (FFDE), consistent with the Americans with Disabilities Act (ADA), of an employee after the employee has been restored to work based on their own doctor's FMLA certification, even if the basis for the FFDE relates to pre-FMLA leave conduct?
Opinions:
Majority - Croskey, Acting P. J.
No, the FMLA does not prohibit an employer from requiring a fitness-for-duty examination (FFDE) consistent with the ADA, after an employee has been restored to work based on their own doctor's FMLA certification, even if the basis for the FFDE relates to pre-FMLA leave conduct. The court clarified that the FMLA's provisions regarding fitness-for-duty certifications, specifically the prohibition against requiring second or third opinions, apply only prior to an employee's return to work. Once an employee is restored to employment, as White was on September 7, 2011, the FMLA’s fitness-for-duty regulation no longer applies. At this point, any subsequent medical examination falls under the Americans with Disabilities Act (ADA), which permits medical examinations that are "job-related and consistent with business necessity." Citing a 2008 revision of the applicable FMLA regulations (29 C.F.R. § 825.312(h)) and accompanying Department of Labor comments, the court explicitly noted that this regulatory change intended to clarify the bright line where FMLA protections cease and ADA standards begin post-reinstatement, thus implicitly rejecting prior federal district court opinions like Albert v. Runyon and Routes v. Henderson. The court emphasized that an employee's FMLA leave certification only requires immediate restoration to work; it does not nullify or "erase" all prior events that could justify a later ADA-compliant FFDE. For a peace officer like White, who carries a weapon and must meet specific mental and emotional fitness standards under Government Code section 1031, pre-leave depression and erratic conduct constitute a valid business necessity for a FFDE, even if her own doctor had certified her return.
Analysis:
This decision significantly clarifies the temporal scope of FMLA’s return-to-work protections, establishing that they apply only up to the point of reinstatement, not indefinitely thereafter. It re-affirms an employer’s ability to conduct ADA-compliant fitness-for-duty examinations for employees returning from FMLA leave, particularly in safety-sensitive positions, even if the underlying concerns predate the leave. This balances an employee's FMLA rights with the employer's legitimate interest in ensuring workplace safety and job performance. Future cases will likely cite this case to delineate the precise interaction between FMLA certification for return to work and an employer's subsequent right to order ADA-compliant medical evaluations, especially when there are documented pre-leave concerns about an employee's fitness for duty.
