Employees suffering from serious health conditions may be entitled to intermittent Family and Medical Leave. What happens when the medical certification used to justify the intermittent FMLA leave request raises questions about the employee's ability to perform the job in any capacity? The Eighth Circuit Court of Appeals recently concluded that termination was justified based upon medical information uncovered by the employer after the FMLA leave application was made.

In Wisby v. City of Lincoln, the plaintiff was a 911 dispatcher who applied for intermittent FMLA leave due to a diagnosis of depression and anxiety disorders. She requested that she periodically be given time away from work to deal with the effects of these disorders. The City was sufficiently alarmed by this information to require the plaintiff to submit to a fitness for return to duty exam before it would allow her to resume working at all. The psychiatrist who examined her concluded that due to her medical condition, the plaintiff was not fit to perform her duties in any capacity.

After the employee's twelve weeks of FMLA leave expired, the City terminated her employment, concluding that she was incapable of performing her job. The plaintiff sued, alleging that the City did not have adequate legal grounds to require the medical examination under the Americans with Disabilities Act.

In affirming summary judgment for the employer, the Eighth Circuit concluded that the medical information provided in the FMLA certification provided business necessity under the ADA for the follow-up psychiatric examination. Given her essential role in emergency response operations, the disclosure of a serious depression diagnosis called into question the plaintiff's ability to concentrate on her job duties.

Not every occupation will create the same business necessity grounds for requiring a medical examination when an employee requests intermittent FMLA leave. However, in circumstances where the employee works in a safety sensitive job, or one where performance of its essential functions is called into question by the diagnosis provided in the FMLA paperwork, the employer may be entitled to seek additional medical information before allowing the employee to return to work.