Tread Lightly Through The Mine Field of Fitness for Duty


An employee returning to work from Family and Medical Leave Act ("FMLA") leave is a delicate situation that must be handled with sensitivity and tact by employers. While employees want to be treated as they were before their leave; employers need to ensure employees can perform their job duties. To ensure employees can return to their prior duties employers can condition reinstatement on an employee presenting a certification from the employee's doctor that the employee is able to resume work. This requirement is called a fitness-for-duty certification ("FFD"). Though FFD are commonly required in manual labor positions; they may be required for any type of work when an employee returns from FMLA leave. Requesting an FFD can become a mine field for employers. Employers must be careful to uniformly request FFD to ensure that returning employees do not feel singled out for taking a legal leave of absence. Moreover, an employer should notify an employee of the requirement for a FFD at the time the employee is designated to be on an FMLA leave. This will aid in avoiding the perception that the FFD is retaliatory in nature.

California law provides that employers must accept certification from the employee's doctor-of-choice and cannot mandate an employee to see the employer-selected physician prior to return. However, employer can require the FFD to indicate if the employee can perform all of the essential functions of the employee's position. In this situation, the employer should include a specific list of the essential job functions of the employee's position for the doctor to review before providing a FFD.

Interestingly, California Courts have ruled that employers may require a FFD with an employer-selected physicianafter the employee has been reinstated. In White v. County of Santa Clarita, the Court of Appeals held it was acceptable for the County to require a Santa Clarita district attorney to undergo a FFD examination after reinstatement from FMLA leave. The Court was very clear that the County could not require the district attorney to submit to a medical examination as a condition of returning to work.

An even more complex issue is whether an employer can require a FFD as a condition of continued employment? InKao v. University of San Francisco, a professor began acting aggressively toward his colleagues, who made complaints to the administration. After much consternation, it was decided the only way to determine if the professor could be a possible threat was to have him to undergo a FFD examination. The University engaged in negotiations with the professor regarding submitting to a FFD examination to no avail. Eventually, the professor was terminated for refusal to submit to the FFD examination. The Court of Appeals confirmed that it was reasonable to require the FFD to assess an employee's possible threat to others.

Though an employer may have legal grounds to require an FFD, such requests must be handled with sensitivity to ensure an employee does not feel discriminated or retaliated against for taking FMLA leave or for possible physical or mental disabilities. Employers should consult with competent counsel before requesting an employee submit to an FFD for reinstatement or for continued employment, otherwise the situation may explode into litigation.

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