9th Circuit Decides FMLA Case

August 05, 2024

Important Takeaways: The 9^th Circuit Court of Appeals just held that an employer does not have to ask an employee to seek another medical opinion or recertify their injury in order to challenge the validity of the employee’s FMLA leave.

Facts: Tomas Perez sued his former employer, Barrick Goldstrike Mines, Inc. (Barrick) challenging his termination. Perez was employed as an underground haul truck driver and Barrick alleged that he faked an injury to take leave under the Family and Medical Leave Act (FMLA), leading to his termination. Perez’s lawsuit claimed wrongful interference with his rights under the FMLA and retaliatory discharge in violation of Nevada public policy.

Perez claims he was injured at work when his haul truck collided with the wall of a mine and his chest was thrust into the armrest of the driver’s seat. Barrick’s policy requires employees to report all injuries and incidents immediately, but Perez did not report the accident until hours later at the end of his shift. Perez was examined by an on-site emergency medical technician who did not observe any outward signs of injury. Dr. Black treated Perez and found there were no abnormalities in Perez’s X-ray and the technician found his heart and lungs were functioning normally. Dr. Black diagnosed Perez with a chest wall contusion and muscle spasms based on Perez’s explanation of the accident and pain. Perez was prescribed a muscle relaxant and was told to not work for five days pending a follow-up appointment. At the follow-up appointment, Perez claimed he was still in pain and was told not to work for another 11 days. 18 days after the alleged accident, Perez was certified to return to work with no restrictions.

During their investigation into the alleged accident, Barrick found no physical evidence that Perez’s truck collided with the side of the mine. An employee later emailed a manager to tell them that a friend of Perez told the employee Perez was faking a work related injury in order to take time off work to fix rental properties. Barrick then hired a private investigator to follow Perez to confirm whether this was true. The private investigator captured video evidence of Perez engaging in various activities without visible signs of difficulty or discomfort. This including driving through town, gambling at a casino, repairing his rental property, lifting and holding his arms above his head, and using various power tools. Barrick confronted Perez with this information when her returned and Perez responded that he had nothing to say. Barrick terminated Perez for faking his injury and violating company policy.

To make a prima facie case (on its face) of FMLA interference they need to first show that they were eligible for the FMLA’s protections. They are entitled to FMLA leave if they have a serious health condition that makes the employee unable to perform the functions of the position. Under the FMLA an employer may require that a request for leave due to serious health condition be supported by certification and if the employer doubts the validity of the certification the employer may require that the employee obtain a second or third opinion and seek recertifications on a reasonable basis. Barrick never requested a recertification or obtained a second medical opinion after Dr. Black certified Perez’s time off. Perez argues that Barrick had to do this to show he did not qualify under the FMLA.

The 9^th Circuit Court of Appeals followed the reasoning of other circuits and held that § 2613 of the FMLA does not require an employer to seek recertifications or a second or third medical opinion before contesting the validity of an FMLA certification in litigation.

What this means: In the 9^th Circuit, where Montana is located, an employer does not have to ask an employee to recertify their illness or seek another medical opinion before challenging the validity of their original FMLA claim. This means that if an employee is terminated while on FMLA leave, the employer will be able to challenge the validity of the employee’s FMLA leave in any subsequent litigation without having asked the employee to see another medical professional or provide recertification of their injury.

This case is called Perez v. Barrick Goldstrike Mines, Inc., 9^th Circuit Court of Appeals, May 14, 2024. Read it here. Please reach out to Bea, Megan, Beth, Kevin, or Kali with any questions.