Susan White is employed as a Senior District Attorney Investigator with the Los Angeles County District Attorney’s Office (DA). Her job includes personally serving arrest warrants, making arrests, interrogating suspects, and booking prisoners, and requires police officer certification.

Beginning in late 2009, around the time of the death of her brother-in-law, White began experiencing emotional difficulties. She was observed acting erratically in the workplace, with very high emotional highs and very low lows. White began making unsafe tactical decisions, and told her supervisor that she was having problems regulating her medications. She was observed crying, anxious, and having dramatic mood swings.

On June 16, 2010, tactical training was conducted. During the training White “did not make good tactical decisions, rushed movement, and appeared nervous.” At one point, she tripped over a fellow investigator who was moving forward, and she was “continuously pointing her fake weapon at other team members.” In a follow-up conversation with a supervisor, White described herself as “a whack job,” and related that she had recently lost her composure on the witness stand.

Eventually, White took FMLA leave to undergo treatment for her psychological difficulties. When her doctor eventually released her to full duty, the County placed her on paid administrative leave and reassigned to her home. When the County insisted that she participate in a fitness-for-duty evaluation prior to a full return to work, White filed a lawsuit under the FMLA.

The California Court of Appeals began its lengthy opinion in White’s case by essentially holding that White was relying on the wrong federal statute. The Court held that under the FMLA, once an employee returning from FMLA presents medical certification that she is fit for duty, the employer has no right to seek a second opinion. Rather, the Court found, the employer must accept the employee’s certification and return the employee to paid status (as did the County with White).

The Court concluded that it was the Americans With Disabilities Act, not the FMLA, that really controlled White’s case: “It is clear that the Department of Labor intended to clarify that a bright line exists at the employee’s return to work. Before the return to work, the employer must accept the employee’s physician’s certification and return the employee to employment; after the return to employment, the FMLA protections no longer apply, and the employer may require a fitness-for-duty evaluation consistent with the ADA.”

White argued that “a single health care provider’s opinion (i.e., that of the employee’s health care provider) that an employee can return to work from a particular illness or disability is conclusive, and cannot subsequently be questioned by the employer in a fitness-for-duty evaluation.” The Court soundly rejected that theory, commenting that “public policy rebels at such a thought. The FMLA itself acknowledges that medical professionals can disagree on whether an employee’s serious health condition renders the employee unable to work; it provides for a second opinion on whether an employee qualifies for FMLA leave and a third opinion if the first and second opinions are not in agreement. As such, it is unlikely that Congress intended an employee’s health care provider’s opinion to be conclusive on the employee’s fitness for work. Instead, 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 fitness-for-duty evaluation, if it has a basis to question the employee’s health care provider’s opinion.”

The standard under the ADA, the Court found, should be whether the fitness-for-duty evaluation is job-related and consistent with business necessity. The Court noted that “it is appropriate, and not in violation of the ADA, for a peace officer with mental health issues to be ordered to a fitness-for-duty evaluation. It is unnecessary for the employer to establish that the employee’s job performance has actually suffered in order to require an evaluation, when the employee in question is a peace officer who carries a weapon.”

In White’s case, the Court held that the County properly relied on White’s pre-FMLA-leave behavior to require a fitness-for-duty evaluation: “White’s doctor certified her to return to duty; under the FMLA, White was entitled to be restored to employment, no more. White was restored to employment, as required. The County then sought an evaluation, as it questioned White’s fitness for duty in light of her severe depression, and instances in which that depression, and her prior inability to manage it: (1) caused White to put her own safety in danger; (2) called into question White’s ability to react properly in tactical situations; and (3) caused her to give unprofessional, and possibly false, testimony in a criminal case. The order that White appear for an evaluation did not violate the FMLA.”

White v. County of Los Angeles, 170 Cal.Rptr.3d 472 (Cal. App. 2014).

The above article has appeared in a previous issue of Public Safety Labor News and has been reprinted courtesy of Labor Relations Information System. These articles are for informational purposes only.

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