When you say “FMLA” and “ADA” in the same sentence, most employers sigh, thinking the marriage of the two laws only allows employees to “double dip” into the medical leave system. But they actually work together in one area to help employers — not just employees.
That area: fitness-for-duty exams.
Under the FMLA, when an employee exhausts his or her medical leave, all that a person needs to return to work is a certification from a physician saying as much.
But what if the person really shouldn’t be working? Say, for example, you fear they haven’t gotten over a mental issue that could crop up at any time. Do you have to just welcome the person back with open arms?
Depression and guns don’t mix
Example: Susan White was district attorney investigator for the Los Angeles County District Attorney’s Office. Her position required her to carry a gun. After the death of a relative, White experienced bouts of depression and her behavior became erratic, which culminated in her pointing a fake gun at her team members during a training exercise — something that was verboten.
She was placed on FMLA leave, which she eventually exhausted. At that point, she returned to the district attorney’s office, which immediately asked her to undergo a medical examination to make sure she wasn’t dangerous to her co-workers. The office asked White to do this despite having received the OK from her physician to return her to work.
White refused the medical exam, and she sued, claiming her FMLA rights had been violated because she wasn’t allowed to return to work following her leave.
Here’s what a California state court had to say about it: White had exhausted all of her FMLA rights, and once she returned to work she was then covered by the ADA — and the ADA allows an employer to a request medical examination if it believes a worker’s condition poses a risk to their work or their co-workers.
As employment law attorney and renown FMLA expert Jeff Nowak explained on his FMLA Insights blog:
“As the court pointed out, even the Department of Labor takes the position that the employer can require a medical examination under the ADA once the employee has returned from FMLA leave. Notably, in the preamble to the 2008 changes to the FMLA regulations, the DOL stated in no uncertain terms:
‘the Department intends to make clear that, once an employee returns to work and is no longer on FMLA leave, an employer may require a medical exam under the guidelines and restrictions imposed by the ADA. At that point, the FMLA’s fitness-for-duty regulation no longer applies. (73 Fed. Reg. 67934-01, 68036.)’“
So a worker’s road back to the workplace after FMLA leave doesn’t have to end with a fitness-for-duty certification by their physician — if you have enough evidence to believe the person is a risk in the workplace.
Nowak points out that the case above creates a road map employers can follow when risky employees return from FMLA leave:
- accept the employee’s return-to-work certification
- return the employee to his or her equivalent position
- place them on a leave of absence immediately (as in moments) after they are returned to work, and
- require a medical certification under the ADA.
However, Nowak does warn that this will not fly in every situation. In fact, before placing anyone on a leave of absence, Nowak advises that you make sure you can demonstrate the employee’s condition “impacted, or posed a risk to, the employee’s work.”
Employers will also want to make sure that their ADA-covered medical exams are job-related and consistent with business necessity.
This should come as good news to employers who feel powerless when a worker returns from FMLA leave, certification in hand, who appears to be a threat to the workplace or workforce. With enough evidence, you can now move the employee from the FMLA realm into the world of the ADA — in a way that doesn’t just entitle them to more employee-only protections.
Cite: White v. County of Los Angeles