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Employers May Seek a Second Opinion Regarding an Employee’s Post-FMLA Fitness to Return to Work Duties Even After Reinstating the Employee

Andrea M. Weiss
Ruth Zadikany
Mayer Brown LLP - Los Angeles Office

Lori A. Zahalka
Mayer Brown LLP - Chicago Office

June 3, 2014

Previously published on May 30, 2014

Decision: In White v. City of Los Angeles, a former district attorney investigator took a medical leave of absence under the Family Medical Leave Act (FMLA). Prior to her FMLA leave, the investigator had behaved “erratically.” Upon returning from leave, she was advised that she would be placed on paid administrative leave and reassigned to her home pending an investigation related to her pre-leave conduct. The employer then required her to undergo a medical reevaluation, pursuant to the employer’s policy, to assess her fitness to continue working. The employee was advised that she could face disciplinary action if she failed to appear for the reevaluation. The employee then filed an action for injunctive relief to prohibit her employer from requiring her to appear for a medical reevaluation or disciplining her for failing to appear, asserting that requiring her to submit to a medical reevaluation violated her rights under the FMLA.

The California Court of Appeal disagreed, holding that, because the employee had been reinstated to work when she returned from her FMLA leave, the FMLA “return to work” requirement was not implicated. The court further held that employers are not prohibited by the FMLA from requiring a medical reevaluation of an employee related to the serious health condition for which the employee was granted FMLA leave. The court explained that the FMLA should be interpreted to render the employee’s health care provider’s opinion conclusive on the issue of whether the employee should immediately be returned to work, but permits the employer to thereafter require a second opinion, if it has a basis to question the employer’s health care provider’s opinion.

Impact: The court’s decision suggests that employers may have additional leeway in administering FMLA leave by permitting employers to take steps to ensure that their employees are truly capable of performing their duties upon returning to work. Once the employer reinstates the employee, the employer can take steps to confirm, via a secondary medical opinion, that the employee is fit for work provided that the assessment is consistent with the employer’s business needs.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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