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The Family and Medical Leave Act does not prohibit an employer from requiring that a worker undergo an independent medical exam before returning to work from an extended leave if a union contract allows it and the worker’s own doctor was unclear in certifying that she was ready to work again, a federal judge has ruled. In his six-page opinion in Conroy v. Township of Lower Merion, federal Judge Ronald L. Buckwalter of the U.S. District Court for the Eastern District of Pennsylvania found that the FMLA ordinarily requires an employer to seek clarification from a worker’s doctor but that the law also states that a union’s collective-bargaining agreement can supersede the FMLA’s procedures for a worker’s return. Buckwalter found that since Lower Merion, Pa., previously required 26 other workers to undergo an independent medical exam when their doctor certifications were unclear, the practice was an implied condition in its collective-bargaining agreement. As a result, Buckwalter said he was forced to decide the legal question of whether such a practice interferes with rights guaranteed by the FMLA. He found that it did not. “The FMLA simply entitles an employee to resume her employment. It does not, however, ensure a particular administrative procedure for returning to work,” Buckwalter wrote. Buckwalter concluded that since Lower Merion was “merely implementing a policy for handling situations where a certification is unclear,” its requirement of an independent medical exam does not restrict or even affect the plaintiff’s rights under the FMLA. “Even though requiring an IME creates an additional step for plaintiff, defendant covers the cost of the IME and this practice does not alter the standard for plaintiff’s eligibility or make it more difficult for plaintiff to be deemed qualified to return,” Buckwalter wrote. Buckwalter dismissed the FMLA claim, but the suit will proceed with claims under the Americans with Disabilities Act, the Pennsylvania Human Relations Act and Section 1983. According to court papers, Patricia Conroy had been a clerk in the Lower Merion Finance Department for 23 years when she took a leave of absence under the FMLA because of a flare-up of her chronic back pain. Conroy, who is represented by attorney C. Scott Shields of Shields & Hoppe in Media, Pa., claims that ever since she suffered her back injury in 1984, she has been harassed on the job. Although she has asked to be moved so that she will not be exposed to drafts, she claims that the township has repeatedly refused to accommodate her. The flare-up of her back injury in March 2000, she said, was caused by air conditioning. NO GUNS ALLOWED The litigation took a bizarre turn late last year when Buckwalter issued an order that all future depositions should be held in a secure location equipped with a metal detector and an X-ray machine. The judge’s order was prompted by a motion from Philadelphia lawyers — Jacqueline K. Gallagher and Daniel F. Schranghamer of Obermayer Rebmann Maxwell & Hippel — that asked the judge to order “reasonable precautions” because of alleged threats of violence made by Conroy. The motion included affidavits from township workers who said Conroy had threatened to physically attack any workers in the Finance Department if they attended the funeral of Sal Frustaci, the township superintendent of police. Police had also learned that Conroy had two guns, the motion said. Another affidavit quoted Conroy as saying that there was going to be a “big explosion” and that the township was not “done with her yet.” But Conroy’s lawyer responded with a brief that accused the township of fabricating the allegations to harass and intimidate Conroy. In the brief, Shields said that Frustaci had been Conroy’s “companion” for 17 years and that she had never threatened to attack any workers but had merely told them not to attend the funeral and that they would be thrown out if they showed up. The remark about the “explosion,” he said, referred to an “explosion of emotion” that Conroy feared she would suffer if unwelcome guests attended the funeral. Shields also explained that Frustaci’s daughter had contacted township police to inquire about the proper way to give her late father’s guns to Conroy, as was his dying wish. The township and its lawyers, he said, “contrived” Conroy’s threats to harass her and her lawyer in the depositions. Shields said that when he and Conroy arrived for one deposition, they were “herded” into a small room in a township building and were told that they would be searched. Instead of complying with the search, Shields said, he called the deposition off and left. Buckwalter apparently responded to the motion with an excess of caution and granted the township’s request that all future depositions be held in a location where attendees could be electronically scanned for weapons before entering.

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