When an employer determines that an employee may not be able to do his or her job due to a physical or mental condition, a fitness for duty (FFD) examination is the remedy.

But what happens when the employee asserts rights under the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), or the Fair Employment and Housing Act (FEHA)? Two recent Court of Appeal cases answered important issues involved in such cases.

White v. County of Los Angeles

In White v. County of Los Angeles, the Court of Appeal ruled employers can require employees who return to work after leave under the Family and Medical Leave Act (FMLA) to undergo a medical reevaluation related to the health condition for which the employee was granted FMLA leave.

Under the FMLA, an employer must accept the employee's physician's certification that the employee is able to return to work. Sometimes however, employers are concerned about an employee's fitness for duty.

White, a Senior District Attorney Investigator with the Los Angeles County District Attorney's Office, began experiencing emotional difficulties and erratic behavior in late 2009. Over the next year and a half, these problems negatively impacted her job performance. In mid-2011, White took FMLA leave to undergo mental health treatment. Later that year, White returned to work with a clearance letter from her own doctor.

In early 2012, the DA's office ordered a medical reevaluation to ascertain White's capacity to perform her job duties. She refused to appear for the evaluation and subsequently sued. In her suit, she argued that requiring her to undergo the medical reevaluation violated her right under the FMLA to be restored to employment on her doctor's approval alone.

The lower court issued a permanent injunction preventing the County from requiring a medical reevaluation of White, or from charging her with insubordination for failing to comply with the medical reevaluation. On appeal, the court stated that Department of Labor regulations allow for a fitness for duty examination (FFDE), consistent with the Americans with Disabilities Act (ADA), after the employee's return to work—when FMLA protections no longer apply.

The court noted 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 be immediately returned to work, but to permit the employer to thereafter require a FFDE, if it has a basis to question the employee's health care provider's opinion.” Thus, employers that determine an employee must undergo a fitness for duty examination can require a medical evaluation at the employer's expense after the employee returns to work from FMLA leave.

Kao v. University of San Francisco

The Court of Appeal recently ruled that an employer may conduct a “fitness for duty” examination of an employee where reasonable grounds exist, even when that employee has an alleged disability, without first engaging in the “interactive process.”

In Kao v. University of San Francisco, Professor John Kao engaged in a series of confrontations with other academics at University of San Francisco over time. His coworkers became afraid of him. He angrily responded to innocuous questions, and became enraged at colleagues over seemingly benign interactions.

So, the University began investigating. It retained specialists in workplace violence and threat assessment. The experts recommended that Professor Kao be examined by a professional, who would render a “fitness for duty” opinion. The University explained to Kao that he had to submit to the fitness for duty, or be placed on a leave of absence and excluded from the premises. The University explained in detail the requirements of the FFD exam, including strict limitations on the expert evaluator's dissemination of information about Kao's condition.

Kao's lawyer got involved, and objected to the FFD. As a result, the University placed Kao on a leave. There were further meetings and exchanges with Kao's counsel, the faculty's union representative, and the University, to no avail. Kao's attorney wanted to have a “clear the air meeting,” at which Kao would assure the University he meant no harm.

The University ultimately terminated Kao's employment, about a year after all the problems started. Kao sued for disability discrimination and defamation, among other things. A jury rejected Kao's claims and he appealed. Kao argued at trial that the FFD was a medical examination.

Under the Fair Employment and Housing Act, a medical examination of an employee is permissible if “job related and consistent with business necessity.” In addition, Kao argued that the FFD could not be job-related or necessary without the University's first engaging in the “interactive process” that is part of the “reasonable accommodation” process.

The court concluded that no interactive process was necessary, because Kao did not assert that he had a disability prior to the University seeking the FFD. The court quoted from the jury instruction in defining “job-related and consistent with business necessity”: The jury was instructed in accordance with Government Code section 12940, subdivision (f):

“ ‘John Kao claims that the university wrongfully required a medical and psychological examination (fitness-for-duty or FFD). [¶] . . . The University of San Francisco asserts that the medical or psychological examination (fitness-for-duty or FFD) request was lawful because it was necessary to the university's business. To succeed, the university must prove both of the following: 1, that the purpose of the FFD was to operate its business safely and efficiently; and 2, that the FFD would substantially accomplish this business purpose. [¶] . . . If the university proves that the FFD is necessary to the university's business, then the FFD is lawful unless John Kao proves both of the following: 1, that there was an alternative to the FFD that would have accomplished the university's business purpose equally well; and 2, that the alternative would have had less adverse impact on John Kao.' ”