of Chiefs of Police, Inc.
Police Psychological Services Section
Annual Conference — Toronto, Ontario
Oct. 28, 2001
An addendum compiled by
Wayne W. Schmidt
AELE Law Enforcement Legal Center
In 1998, a federal court ruled that the Postal Service could not require a FFDE of an employee who has been certified by a physician or psychologist that he/she is able to return to work, unless the employee's post-leave behavior justifies it. Albert v. Runyon, 6 F.Supp.2d 57, 1998 U.S. Dist. Lexis 7505 (D.Mass.).
In 1999, two more cases held, that under the FMLA, an employer cannot require a "fitness for duty'' exam of an employee who has been certified by a physician or psychologist that he/she is able to return to work, unless the employee's post-leave behavior justifies it, citing Albert v. Runyon: Routes v. Henderson, 58 F.Supp.2d 959, 1999 U.S. Dist. Lexis 9835, 5 WH Cases2d (BNA) 768 (S.D. Ind.) and Underhill v. Willamina, 1999 U.S. Dist. Lexis 9722 (D.Ore.).
Either leave is under the FMLA or it is not. There are many kinds of paid and unpaid leave, and the courts have upheld various kinds of tests (including drug screening) prior to a return to duty from an extensive non-FMLA leave period, e.g., more than 30 days. Harris v. Washington, #84-C8812 (unpublished, N.D. Ill. 1985); Wrightsell v. City of Chicago, #87-C-3532, 678 F.Supp. 727, 1988 U.S. Dist. Lexis 625, 2 IER Case (BNA) 1619 (N.D.Ill.1988).
If the leave is not under the FMLA, return to duty conditions MAY be limited by a statute or ordinance, a bargaining agreement, or a recognized custom or past practice. Management may be required to bargain with the union before implementing a requirement that personnel returning from an extended leave must be screened for drug abuse. County of Cook v. Lic. Prac. Nurses Assn., 671 N.E.2d 787, 1996 Ill.App. Lexis 749.
The fact that FMLA time may be "compensated" under worker's comp. laws is not controlling. Worker's compensation is a statutory benefit scheme enacted in every state, and state statutes yield to federal laws and regulations under the U.S. Constitution's "Supremacy Clause."
1. If an employee voluntarily or involuntarily is placed on FMLA leave, and the health care professional certifies the employee is fit for duty, there cannot be another FFDE as a condition of reinstatement, including the right to carry a firearm.
2. An employee may take FMLA leave "because of a serious health condition" that makes him or her "unable to perform the functions" of his or her position. 29 U.S. Code §2612(a)(1)(D).
3. A "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves ... inpatient care ... or continuing treatment by a health care provider." 29 U.S. Code §2611(11).
4. The implementing regulations describe the various ways in which these definitions may be satisfied, and explain that "a serious health condition involving continuing treatment" includes a period of incapacity lasting more than three consecutive days and any subsequent related incapacity, coupled with at least two treatments by a health care provider. 29 C.F.R. § 825.114(a)(2)(i)(A).
5. An employee must notify his or her employer of the need for FMLA leave "as soon as practicable," but "need not expressly assert rights under the FMLA or even mention the FMLA." 29 C.F.R. § 825.302, § 825.303.
6. It is the employer's duty to determine whether leave is FMLA-qualifying, and the employer must base its decision "only on information received from the employee." 29 C.F.R. § 825.208(a).
7. Leave taken under the FMLA may be either paid or unpaid, depending on the employee's eligibility for leave under the employer's general policies. 29 C.F.R. § 825.207.
8. Where an employee uses accrued paid leave, the employer may not have sufficient information to determine whether the leave is covered by the FMLA. In such a situation, "the employer should inquire further of the employee ... to ascertain whether the paid leave is potentially FMLA-qualifying." 29 C.F.R. § 825.208(a).
9. An employer may require employees seeking leave for medical reasons to provide certification of their serious health conditions from their health care providers. 29 U.S. Code §2613(a). Such certification "shall be sufficient" if it includes the date on which the condition commenced, its probable duration, "appropriate medical facts ... regarding the condition," and "a statement that the employee is unable to perform the functions" of his or her position." 29 U.S. Code §2613(b).
10. An employer may demand a second opinion if it "has reason to doubt the validity" of the provider's certification. 29 U.S. Code §2613(c).
11. The FMLA provides that an employee returning from FMLA leave "shall be entitled" to be restored to her former position or an equivalent position of employment. 29 U.S. Code §2614(a)(1).
12. An employer may condition restoration on a uniform policy that requires each returning employee to obtain certification of her ability to resume work from her own health care provider. 29 U.S. Code §2614(a)(4). The implementing regulations provide that this certification "need only be a simple statement of an employee's ability to return to work." 29 C.F.R. § 825.310(c).
13. The regulations allow the employer, with the employee's permission, to have its own health care provider contact the employee's health care provider "for purposes of clarification of the employee's fitness to return to work." The employer may not request additional information, and may request clarification "only for the serious health condition for which FMLA leave was taken." Moreover, "the employer may not delay the employee's return to work while contact with the health care provider is being made."
14. The FMLA does not authorize an employer to make its own determination of whether an employee is fit to return from FMLA leave following recovery from a serious health condition. Rather, an employer must rely on the evaluation done by the employee's own clinician and return the employee to work without delay upon receipt of medical certification.
15. Requiring an employee to undergo a psychological examination is not the proper way for an employer to resolve any legitimate concerns it might have had about a returning employee's abilities and possible restrictions on his or her activities. The Secretary of Labor explicitly declined to allow employers to seek a second opinion as to an employee's fitness for duty once the requisite certification has been received, noting the absence of any statutory authorization for such a procedure. 60 Fed. Reg. 2180, 2226 (1/6/1995).
16. An employer with questions about the scope or adequacy of a medical certification may take advantage of the FMLA provision allowing it to contact the employee's clinician for clarification, but may not force an employee to submit to a further examination before allowing her to return to work. 29 C.F.R. § 825.310(c).
However, if the return-to-work certification, provided by the employee's health care provider, is unclear or confusing, and if the employer has a policy or past practice of requiring an independent examination in such cases, a recent case enforced an employer's requirement for an independent examination. Conroy v. Township of Lower Merion, #00-CV-3528, 2001 U.S. Dist. Lexis 11460 (E.D. Pa.). In that case:
(a) The plaintiff was a member of a certified bargaining unit;
(b) The union had signed a bargaining agreement with the employer;
(c) State law provides for mandatory collective bargaining in the public sector;
(d) The bargaining agreement enforced identifiable past practices; and
(e) The employer had consistently demanded an independent examination in 26 prior cases where the certifications were unclear or confusing
17. In those agencies with bargaining agreements, an order to take a FFDE is grievable (and subject to arbitration) as to whether the employee's supervisors had a reasonable basis to require the exam. Hill v. City of Winona, 454 N.W.2d 659 (Minn. App. 1990). Arbitrators may be more tolerant of inappropriate behavior. See Maplewood and Law. Enf. Labor Serv., 108 LA (BNA) 572 (Daly, 1996), holding that the use of obscene language to another police employee did not justify a mandatory FFDE.
• Albert v. Runyon, 6 F.Supp.2d 57, 1998 U.S. Dist. Lexis 7505 (D.Mass. 1998).
• Conroy v. Township of Lower Merion, #00-CV-3528, 2001 U.S. Dist. Lexis 11460 (E.D. Pa.).
• Cook, County of v. Licensed Practicing Nurses Assn., 671 N.E.2d 787, 1996 Ill.App. Lexis 749.
• Harris v. Washington, #84-C8812 (unpublished, N.D. Ill. 1985).
• Hill v. City of Winona, 454 N.W.2d 659 (Minn. App. 1990).
• Maplewood and Law. Enf. Labor Serv., 108 LA (BNA) 572 (Daly, 1996).
• Routes v. Henderson, 58 F.Supp.2d 959, 1999 U.S. Dist. Lexis 9835, 5 WH Cases2d (BNA) 768 (S.D. Ind. 1999).
• Underhill v. Willamina, 1999 U.S. Dist. Lexis 9722 (D.Ore. 1999).
• Wrightsell v. City of Chicago, #87-C-3532, 678 F.Supp. 727, 1988 U.S. Dist. Lexis 625, 2 IER Case (BNA) 1619 (N.D.Ill.1988).
• Note, "The Family and Medical Leave Act of 1993: Proving or Defending a Claimed Violation," by Richard S. Stevens. Suffolk [N.Y.] Journal of Trial & Appellate Advocacy, Vol. 4, pages 253-269.
• Commentary, "Evaluating the Current Judicial Interpretation of 'Serious Health Condition' Under the FMLA," by William McDevitt. Vol. 6, Buffalo Univ. Pub. Int. Law J. 697 (1997).
List of FMLA medical regulations
• 825.302 What notice does an employee have to give an employer when the need for FMLA leave is foreseeable?
• 825.303 What are the requirements for an employee to furnish notice to an employer where the need for FMLA leave is not foreseeable?
• 825.304 What recourse do employers have if employees fail to provide the required notice?
• 825.305 When must an employee provide medical certification to support FMLA leave?
• 825.306 How much information may be required in medical certifications of a serious health condition?
• 825.307 What may an employer do if it questions the adequacy of a medical certification?
• 825.308 Under what circumstances may an employer request subsequent recertifications of medical conditions?
• 825.309 What notice may an employer require regarding an employee's intent to return to work?
• 825.310 Under what circumstances may an employer require that an employee submit a medical certification that the employee is able (or unable) to return
• 825.311 What happens if an employee fails to satisfy the medical certification and/or recertification requirements?
• 825.312 Under what circumstances may a covered employer refuse to provide FMLA leave or reinstatement to eligible employees?