In White v. County of Los Angeles, ___ Cal.App.4th ___  (April 15, 2014), the California Court of Appeal (Second Appellate District, Division Three) reversed the order of the Los Angeles County Superior Court (Judge Chalfant) issuing a writ of mandate prohibiting defendant from requiring plaintiff to undergo a fitness for duty evaluation.

Plaintiff was a Senior District Attorney Investigator with defendant’s District Attorney’s office. In this role, she was required to personally serve arrest warrants, make arrests, interrogate suspects, and book prisoners. After Plaintiff began suffering from severe depression and associated lapses in judgment, she took a leave of absence under the Family Medical Leave Act (“FMLA”) that was eventually extended into an unpaid, but authorized, medical leave. Upon receiving notification from plaintiff’s doctor that she was released to return to work, defendant reinstated her but then immediately placed her on administrative leave.  Approximately three months later, defendant instructed plaintiff to undergo a medical reevaluation based on her “erratic conduct prior to her FMLA leave.” Indeed, the reevaluation was not because of anything that occurred while plaintiff was on leave or after she returned. Plaintiff refused to attend and instead filed an action against defendant for injunctive relief, seeking a writ of mandate prohibiting defendant from ordering her to undergo the reevaluation or disciplining her for refusing, as doing either of these would violate her reinstatement rights under the FMLA. The trial court issued the writ, finding that plaintiff’s release to return to work must be deemed sufficient, and that defendant could order a reevaluation based on conduct after plaintiff’s return from leave but not before it. Defendant appealed.

The trial court reversed.  The courted noted that the FMLA requires an employee to be restored to employment upon certification from the employee’s health care provider that the employee is able to resume work. The court also agreed that an employer is not permitted to seek a second opinion regarding the employee’s fitness for work prior to returning the employee to work. However, the court stated, once the employer has returned the employee to work, it may then seek its own evaluation of the employee’s fitness for duty at its expense, even if the basis for the reevaluation is the employee’s conduct prior to being released to return to work.