Ninth Circuit Affirms Employer’s Ability to Challenge Medical Certification with Non-Medical Evidence

08.22.2024

A recent decision from the U.S. Court of Appeals for the Ninth Circuit affirms an employer’s right to dispute medical verification provided by an employee for medical leave under the Family Medical Leave Act (“FMLA”). Because the California Family Rights Act (“CFRA”) is modeled after the FMLA and both laws contain similar provisions regarding challenges to medical certifications, the Ninth Circuit’s decision likely also applies to medical certifications under CFRA.

FMLA and CFRA generally permit eligible employees to take 12 workweeks of unpaid leave in a defined one-year period for their own serious health condition, or to care for a family member or designated person (CFRA only) with a serious health condition. During this leave, employees maintain their health benefits to the same extent as though they were working and are protected from retaliation or discrimination for requesting or using such leave.

When employees request FMLA/CFRA leave for a serious health condition, employers are entitled to request medical certification from a health care provider, which the employee must provide within 15 calendar days (unless impracticable). If certification is vague or insufficient, employers must provide employees with an additional 7 calendar days to cure any deficiency. Under prior law, if the employer doubted the validity of the certification, the employer could require the employee to obtain a second medical opinion at the employer’s expense. If the second medical opinion disagreed with the first, the employer was required to obtain a third medical opinion to break the tie.

However, in Perez v. Barrick Goldstrike Mines, Inc. (9th Cir. 2024) 105 F.4th 1222, the Ninth Circuit held a second medical opinion is not always necessary to challenge the validity of medical verification provided by an employee. According to the Ninth Circuit, an employer may contest the first medical certification based on non-medical evidence.

In Perez, an employee claimed he was injured during one of his shifts as an underground truck driver when his truck collided with the mine’s wall. Although the employer’s on-site medical team and the employee’s treating physician did not observe any signs of injury, the doctor certified the employee for 16 days of medical leave based solely on the employee’s explanation of the accident and his alleged pain. The employer then investigated the employee’s alleged accident and determined the employee failed to properly report his injury and lied about the existence and/or extent of his injury. Information collected during the investigation included a lack of evidence to substantiate an impact with the mine wall, another employee’s statement that Perez faked the injury in order to work at his personal side-business of running rental properties, and evidence collected by a private investigator. In particular, the private investigator uncovered that during Perez’s leave from the mine, Perez engaged in activities that were inconsistent with the reason for the leave, including that he was able to drive and perform repair work at his rental property that included lifting and holding both arms over his head, carrying power tools, and using power tools. Based on the results of the employer’s investigation, and without seeking a second medical opinion about the alleged injury, the employer fired the employee for making a fraudulent claim that he was injured on the job and violating company policy.

Thereafter, the employee sued his former employer, claiming in part, that the employer wrongfully interfered with his rights to take leave under the FMLA. At trial, the jury considered non-medical evidence presented by the employer, namely, information provided by the employee and uncovered by the investigator during the employer’s investigation regarding the alleged accident. The jury found that the employee had not sufficiently established he suffered a serious health condition that prevented him from performing his job. The employee appealed, arguing that the district court erred by not instructing the jury that “only contrary medical evidence can defeat a doctor’s certification of a serious health condition under the FMLA.”

On appeal, the Ninth Circuit held the jury was permitted to consider the non-medical evidence (i.e., the investigation evidence and findings) that the employer offered at trial in support of its contention that the employee did not have a serious health condition within the meaning of the FMLA. The court reasoned the plain language of the FMLA is permissive, meaning it merely provides an employer with the option to require a second or third medical opinion or seek recertifications. Specifically, 29 U.S.C. § 2613(c)–(e) states, “In any case in which the employer has reason to doubt the validity of the certification” under § 2613(a), 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. Therefore, under Perez, the FMLA does not require an employer to present contrary medical evidence before contesting a doctor’s FMLA certification.

The impact of Perez means employers may dispute the existence of a doctor-certified medical condition through non-medical evidence. We note FMLA/CFRA leave and related employer/employee disputes require a fact-specific analysis, and recommend employers contact their AALRR counsel or the authors of this Alert with any specific questions about such matters.

Special thank you to Samantha Fidel, SCELPG law clerk, for her contribution to the alert.