Barran Liebman 
Oregon Law Firm
Fit for Duty? Questioning an Employee’s Readiness to Return from FMLA Leave
The Family Medical Leave Act (“FMLA”) permits employers to require a second (and in some cases even a third) medical opinion about an employee’s need to take leave, but FMLA expressly forbids second opinions once an employee has been medically released to return to work. So what can an employer do when there are ongoing concerns about an employee’s fitness for duty, but the employee insists on reinstatement and presents the medical backup to support the return to work?
A recent California state case provides a path forward for employers faced with this dilemma. When a Los Angeles County investigator resumed working after taking FMLA leave, based on a medical release the County did not trust, the County required the investigator to be medically reevaluated at County expense. The investigator refused, alleging that the reevaluation requirement violated FMLA. The California Court of Appeals determined that any employer concerned about an employee’s medical release can require an employee to be medically reevaluated, as long as the reevaluation occurs after the employee returns to work. Insisting on it before reinstatement would violate FMLA. Even though this is a California state decision and not binding in Oregon or Washington, its reasoning is consistent with the way an Oregon federal court viewed the same question.
A health-care provider’s determination that an employee using FMLA can immediately return to work is conclusive, and cannot be challenged; employers may not require a medical reevaluation as a condition for reinstatement. But reinstatement does not mean that the employer is required to allow the employee to stay at work if there are legitimate reasons for believing the employee is not fit for duty. Once an employee is reinstated, FMLA’s requirements are satisfied. At that point, an employer can require a medical examination at the employer’s expense by an employer’s health-care provider, if such a requirement is job-related and consistent with business necessity. Employers need to make sure there is a good faith concern that will satisfy the “job-related and consistent with business necessity” standard, and that the fit-for-duty evaluation is imposed pursuant to a uniformly applied policy. But where an employee seeks reinstatement based on a questionable medical release, this new opinion provides support for employers who want to take a more conservative approach with the employee on leave, but who are concerned about whether the employee really is able to work.
The opinion is available here