FMLA Entitlement and Reinstatement
Besides claims for FMLA retaliation, in some cases an employee can bring a claim against his employer after being denied FMLA leave. This kind of claim is called "FMLA interference" claim.There are five elements for making a claim for interference with FMLA rights. The employee must establish that: (1) he was eligible for the FMLA's protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled.' [Citation.] In FMLA interference claims, the employer's intent is irrelevant to a determination of liability." Sanders v City of Newport (2011). In other words, an employer is liable for violating FMLA even if the employer believed erroneously but in good faith that the employee was not entitled to FMLA, and even if the employer did not show any signs of hostility toward that employee for requesting FMLA leave.
Reinstatement Rights under FMLA
The FMLA clearly provides that when an employee has completed FMLA leave, that employee is entitled to reinstatement upon certification by the employee's health care provider that he is able to do so. (29 U.S.C. § 2614(a)(4).) While the FMLA permits an employer to require a second opinion (at the employer's expense) to determine whether the employee has a condition requiring FMLA leave (29 U.S.C. § 2613(c)), it does not permit the employer a second opinion prior to reinstating the employee. Indeed, the implementing regulations expressly state that "[n]o second or third opinions on a fitness-for-duty certification may be required." (29 C.F.R. § 825.312(b) (2013).)
The FMLA regulations also state, however, that after an employee returns from FMLA leave, the ADA requires any medical examination at an employer's expense by the employer's health care provider be job-related and consistent with business necessity. (29 C.F.R. § 825.312(h) (2013).) The ADA provides that an employer "shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." (42 U.S.C. § 12112(d)(4)(A).) If an employer is concerned about the health care provider's fitness for duty certification, the employer may, consistent with the ADA, require a medical exam at the employer's expense after the employee has returned to work from FMLA leave. The employer cannot, however, delay the employee's return to work while arranging for an having the employee undergo a medical examination. White v County of Los Angeles (2014).
Reinstatement Rights under FMLA
The FMLA clearly provides that when an employee has completed FMLA leave, that employee is entitled to reinstatement upon certification by the employee's health care provider that he is able to do so. (29 U.S.C. § 2614(a)(4).) While the FMLA permits an employer to require a second opinion (at the employer's expense) to determine whether the employee has a condition requiring FMLA leave (29 U.S.C. § 2613(c)), it does not permit the employer a second opinion prior to reinstating the employee. Indeed, the implementing regulations expressly state that "[n]o second or third opinions on a fitness-for-duty certification may be required." (29 C.F.R. § 825.312(b) (2013).)
The FMLA regulations also state, however, that after an employee returns from FMLA leave, the ADA requires any medical examination at an employer's expense by the employer's health care provider be job-related and consistent with business necessity. (29 C.F.R. § 825.312(h) (2013).) The ADA provides that an employer "shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." (42 U.S.C. § 12112(d)(4)(A).) If an employer is concerned about the health care provider's fitness for duty certification, the employer may, consistent with the ADA, require a medical exam at the employer's expense after the employee has returned to work from FMLA leave. The employer cannot, however, delay the employee's return to work while arranging for an having the employee undergo a medical examination. White v County of Los Angeles (2014).