The U.S. Court of Appeals for the Ninth Circuit recently joined four other circuit courts of appeals in ruling that an employer need not seek second or third medical opinions before contesting a doctor’s certification of a serious health condition under the Family and Medical Leave Act (FMLA). The case is 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).
The plaintiff was working as an underground haul truck driver for a mining company when he claimed that he injured his chest when he struck a mining wall with his truck. Although company policy required him to immediately report the incident, he failed to report it until hours later, at the end of his shift. Neither an onsite emergency medical technician nor a doctor found any signs of injury or abnormalities in an X-ray or heart or lung function tests. Nonetheless, the doctor prescribed a muscle relaxant and certified the plaintiff to be off work for five days, and later, when he still complained of pain, an additional 11 days before he returned to work without restrictions.
Based on a tip from a fellow employee that the plaintiff allegedly had faked the injury, the employer hired a private investigator who recorded the plaintiff driving, gambling at a casino, working on his rental home, lifting his arms over his head, and using power tools while off work with no apparent pain or difficulties. When the employer found no evidence of any collision between the truck and the mining wall, the employer fired the plaintiff for violating company policy and faking his work injury.
The plaintiff filed suit against his former employer in federal district court, claiming that the employer had wrongfully interfered with his FMLA rights and state public policy when it terminated him and denied him reinstatement. A jury disagreed, finding in favor of the employer, who argued that the plaintiff had not proven that he had a serious health condition preventing him from performing his job duties or that they fired him for seeking leave under the FMLA.
On appeal, the Ninth Circuit considered, as a matter of first impression, whether an employer must present medical evidence to counter a doctor’s certification in an FMLA interference claim. In other words, the court analyzed whether an employer must obtain second or third medical opinions before attacking the validity of a doctor’s certification of a serious health condition under the FMLA.
Ultimately, the Ninth Circuit found that while an employer “may” obtain additional medical evidence to contest a doctor’s certification in this type of case, such evidence is not a requirement under the plain language of the FMLA. As a result, the jury was authorized to consider the non-medical evidence that the employer submitted at trial to reach its decision, and the Ninth Circuit upheld the district court’s judgment in favor of the employer.
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