When an employee comes back from Family and Medical Leave Act leave with a fitness-for-duty (FFD) certification from his health care provider in hand, many employers still require the employee to undergo a separate FFD examination by the employer’s own health care provider or employee health office before allowing the employee to return to work.  Those employers typically say that their own doctors or health offices have a better understanding of what the employee’s job actually involves than the employee’s doctor, so they can better evaluate whether the employee is really able to do the job.  The problem is, even though the employers’ explanation makes sense, this additional pre-return FFD examination violates the FMLA.

This issue was recently addressed in the case of White v. County of Los Angeles.  In that case, an employee on FMLA leave for depression received a FFD certification from her doctor, and was returned to work.  However, she was immediately placed on paid administrative leave due to an investigation into misconduct that was unrelated to her FMLA and that occurred prior to her FMLA leave.  During this paid administrative leave, she was required to get a medical evaluation based on her erratic behavior prior to her FMLA leave (not because of behavior during or after her leave).  The employee refused to undergo the evaluation, arguing that it violated her FMLA rights.

The California Court of Appeals observed that the FMLA “clearly provides that when an employee has completed FMLA leave, that employee is entitled to reinstatement upon certification by the employee’s health care provider.”  This certification cannot be second-guessed by the employer since, as the Court noted, the FMLA regulations do not provide for second and third opinions for FFD certifications.  This changes once an employee actually returns to work, however.  At that point, any concerns about an employee’s ability to do the job based on continuing health issues fall under the Americans with Disabilities Act, which allows examinations that are “job-related and consistent with business necessity.”

In finding the employer’s request for a post-return FFD examination permissible, the Court noted that an employer’s concerns, giving rise to the ADA-covered examination, can be based on conduct that occurred prior to the FMLA leave, and that the health care provider’s FFD certification is not necessarily conclusive.  The Court quoted the Department of Labor’s comments in issuing its revised FMLA regulations, which are extremely specific on this issue:

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 [the FMLA regulations].  The employer cannot, however, delay the employee’s return to work while arranging for and having the employee undergo a medical examination.

So while an employer cannot reject a doctor’s FFD certification under the FMLA, it does have the ability to require further medical evaluation after the employee is returned to work.  But, countering the employer argument referenced above that its own doctors are better informed about the employee’s job, employers should also seek to educate the employee’s doctor about the job in question, by providing a detailed job description with the request for an FFD certification (which must be made at the time the leave is designated as FMLA leave).  And even though no second and third opinions are permitted, if a certification is incomplete (not fully filled out) or insufficient (vague, ambiguous or non-responsive), the employer can notify the employee in writing of the deficiency and require the employee to fix the deficiency within 7 days.  In addition, the employer can seek authentication and clarification of the certification, if there is suspicion that the certification was not actually provided by the doctor, or if the employer needs assistance understanding the handwriting or the meaning of a response on the certification.