Key to remember:
FMLA: Employers don't always need to ask for second opinions or recertifications, court says
07/24/2024
Having strong documented evidence helps
Thomas was a driver for an underground mine. One day, he claimed he struck a mine wall, causing his ribs to hit the armrest. Instead of notifying his supervisor, Thomas finished his shift. At the end of the day, however, he began feeling pain.
The company health and safety coordinator, who was trained as an EMT, assessed Thomas' rib cage, and noted no redness, bruising, or other abnormalities. Thomas said it hurt to breathe, but his lungs sounded fine, and his breathing was normal.
Thomas then went to a clinic, where a doctor diagnosed him with a left chest wall contusion. The doctor evaluated him and said Thomas was unable to perform his job duties. Thomas was prescribed muscle relaxants that would make driving the truck dangerous. A follow-up appointment was set for about a week later. The company began processing Thomas' absence as leave under the federal Family and Medical Leave Act (FMLA) and investigating the situation.
Two company employees looked for evidence of a new crash, but found none. One of Thomas' coworkers claimed he was faking the work injury so that he could time off to fix his rental properties.
In response to growing concern of fraud, Sandra from HR hired a private investigator to surveil Thomas. The investigator saw Thomas:
- Driving a truck,
- Walking fine,
- Going to a casino,
- Performing construction work on one of his properties,
- Using a drill, and
- Carrying items such as a ladder, sheet metal, and wood panels.
After looking at all the information they had, company representatives met with Thomas to give him an opportunity to explain. When he could not, the company fired him. He subsequently sued.
In court, Thomas tried to argue that the employer should have asked for a second opinion or a recertification before firing him. The court, however, ruled that the employer was not required to do so under the FMLA. The employer lawfully fired Thomas based on his fraudulent activity.
Perez v. Barrick Goldstrike Mines, Inc; Ninth Circuit Court of Appeals, No. 23-15043, June 28, 2024.
The FMLA does not require employers to obtain a second/third opinion or a recertification before contesting the validity of a certification.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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