Employers Do Not Have to Seek Additional Medical Opinions Before Contesting FMLA Certification

Takeaway: This decision expands the number of circuits that have held that the FMLA does not require an employer to seek recertifications or additional medical opinions before contesting the validity of a certification. While the FMLA gives an employer the option of requiring a second or third opinion and seeking recertification, it does not require an employer to provide contrary medical evidence if it doubts the validity of the original certification.

An employer is not required to present contrary medical evidence before contesting a doctor’s certification of a serious health condition under the Family and Medical Leave Act (FMLA), a federal appeals court ruled.

In the case, an underground haul truck driver claimed that his former employer, a mining company, wrongfully interfered with his rights under the FMLA when it terminated his employment.

The driver claimed he was injured when his haul truck collided with a mine wall and his chest was thrust into the armrest of the driver’s seat. Company policy requires employees to report “all injuries and incidents immediately,” but the driver didn’t report the collision until the end of his shift, hours later. Neither the onsite emergency medical technician nor the doctor who treated the driver found any outward signs of injury. Further, the doctor found no abnormalities in the driver’s X-rays or in the functioning of his heart and lungs.

However, based on the driver’s reported pain, the doctor diagnosed him with a chest wall contusion and muscle spasms, prescribed a muscle relaxant, and certified that he was to remain off work for five days. When the driver complained of continuing severe pain at his follow-up appointment, the doctor certified his absence for an additional 11 days. He then was approved to return to work with no restrictions.

Meanwhile, the employer began investigating the driver’s alleged accident but found no physical evidence that his truck had, in fact, collided with the mine wall. An employee emailed management that one of the driver’s friends had told him that the driver “is faking a work-related injury in order to take time off to work on personal business (fixing rental properties).”

A private investigator hired by the firm captured video evidence of the driver engaging in various activities with no visible signs of difficulty or discomfort, including driving, gambling at a casino, performing repair work at his rental property, repeatedly lifting and holding both arms over his head, and carrying and using power tools. When the driver returned from leave, the employer confronted him with the investigator’s findings, to which the driver responded that he had “nothing to say.” The employer fired him, concluding that he had faked his injury and violated company policy.

The driver filed suit against the employer in federal district court, claiming he had been terminated and denied reinstatement in violation of the FMLA and Nevada public policy. The employer argued that the driver was terminated for failing to properly report his injury and lying about the existence and/or extent of his injury or accident. The jury returned a verdict in favor of the employer, finding that the driver had not shown that he suffered a serious health condition that prevented him from performing his job or that he was terminated for seeking protected leave.

On appeal, the 9th U.S. Circuit Court of Appeals considered, as a matter of first impression, the question of whether an employer must present contrary medical evidence to contest a doctor’s certification and an FMLA interference claim. The court began its inquiry by observing that in any case in which an employer has reason to doubt the validity of the certification of a serious health condition, “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.”

In this case, the employer never requested a recertification or obtained a second medical opinion. The former employee argued that the district court should have instructed the jury that the only proper way to challenge the doctor’s certification would have been to obtain recertifications or subsequent opinions from additional medical experts.

However, the 9th Circuit noted that the word “may” is permissive. “The plain language of the FMLA therefore merely provides an employer with the option to require a second or third opinion and seek recertification,” the court said. “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.”

Adding that four other appellate circuits had reached similar conclusions in other cases, the 9th Circuit said it joined them in holding that the FMLA does not require an employer to seek recertifications or a second or third medical opinion before contesting the validity of a certification in subsequent litigation. Thus, the jury was permitted to consider the nonmedical evidence offered at trial in support of the employer’s argument that the driver did not have a serious health condition within the meaning of the FMLA, the court concluded, affirming the district court’s judgment for the employer.

Perez v. Barrick Goldstrike Mines Inc., 9th Circuit, No. 23-15043 (June 28, 2024), petition for panel rehearing and petition for rehearing en banc denied (Aug. 7, 2024).

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.