In Perez v. Barrick Goldstrike Mines, the U.S. Court of Appeals for the Ninth Circuit has ruled that the Family and Medical Leave Act (“FMLA”) does not require an employer to present contrary medical evidence before contesting a doctor’s certification of an employee’s serious health condition.
Law. The FMLA provides employees with two types of causes of action against employers. First, its “retaliation” provisions prohibit employers from discharging or discriminating against employees for “opposing any practice made unlawful” by the FMLA. Second, the FMLA’s “interference” provisions make it unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided by the FMLA.
Examples of interfering with the exercise of an employee’s FMLA rights include refusing to authorize FMLA leave and discouraging an employee from using such leave. Nevertheless, FMLA allows an employer to require that an employee provide a second medical opinion before approving a request for FMLA leave.
Facts. An employee claimed to be injured in a truck accident. Although he showed no signs of injury, his doctor diagnosed him with a chest wall contusion and muscle spasms, and certified that he was to remain off work for five days. He then requested, and was granted, FMLA leave. The initial five days off was subsequently extended several times by the employee.
During this time, the employer conducted its own investigation and found no physical evidence that the employee’s truck had, in fact, been in a collision. Also, its investigator captured video evidence of the employee engaging in various activities without visible signs of difficulty or discomfort, including driving through town, gambling at a casino, performing repair work at his rental property, repeatedly lifting and holding both arms over his head, and carrying and using a power drill and other tools and equipment. The employer never requested a medical recertification or obtained a second medical opinion.
Nevertheless, the employee was subsequently terminated for “faking his injury.” He then filed a claim for wrongful interference with his FMLA rights. In the district court, a jury returned a verdict in favor of the employer, finding that the employee had not shown by a preponderance of the evidence that he had suffered a serious health condition that prevented him from performing his job or that he was terminated for seeking FMLA leave.
On appeal, the employee argued that the district court should have instructed the jury that the only proper way for the employer to challenge his doctor’s medical certification would have been to obtain recertifications or subsequent opinions from additional medical experts. He claimed that an employer who requires a first certification from a physician is bound by those findings unless it seeks a second medical opinion.
Appeals Court. The Ninth Circuit stated that, under the FMLA, an employer may require that a request for leave due to a serious health condition “be supported by a certification from a health care provider. It noted that, “In any case in which the employer has reason to doubt the validity of the certification,” the employer “may require” that the employee, at the employer’s expense, obtain the opinion of a second or third health care provider or seek recertifications on a reasonable basis.
The Ninth Circuit then ruled that, “The plain language of the FMLA therefore merely provides an employer with the option to require a second or third opinion and to seek recertification. It does not require an employer to provide contrary medical evidence if it doubts the validity of the original certification, let alone mandate that an employer must do so in order to challenge the sufficiency of that original certification in court.”
Accordingly, the Ninth Circuit ruled in favor of the employer and affirmed the jury’s decision to dismiss the employee’s claim.