Atlanta Employment Attorneys Blog
Whether you are an employer or an employee, it is imperative to understand what the Family and Medical Leave Act does (and does not) require if you are hurt on the job. In particular, one should note what obligations the law does (or, more specifically, does not) impose on an employer that doubts the reality (or, at least, the severity) of an employee’s injuries, even when that employee has a certification from a medical provider. Like all procedural aspects of the FMLA, this process demands careful understanding of what the law allows, which is why having advice from a knowledgeable FMLA interference lawyer can be critical.
A recent FMLA interference case from our west delves into the question of an employer’s contesting an employee’s certification, even without a contrasting opinion from a different medical provider.
The employee, T.P., was an underground haul truck driver. One day, the driver reported hitting a mine wall while driving, causing his chest to slam into the armrest of the driver’s seat. The driver’s X-rays were normal, but based on the severe pain the driver reported, his doctor certified two-plus weeks of time off work. The driver used FMLA leave to cover that absence.
Another employee emailed management about a third employee’s comments that T.P. was “faking a work-related injury… to take time off to work on… fixing rental properties.” The employer hired a private investigator, who captured T.P. driving, gambling at a casino, and completing repairs at his rental property. The investigator’s videos showed the driver “repeatedly lifting and holding both arms over his head, and carrying and using a power drill and other tools and equipment.”
The employer eventually confronted the driver, who said he had “nothing to say.” The employer fired the driver, who then sued for FMLA interference.
At trial, the driver relied upon the FMLA certification he received from his treating physician. In a related tactic, the driver argued that the only legally permissible way that certification would have been to have obtained additional medical opinions from other medical experts, which the employer did not do.
The Crucial Importance of the Word’ May’
The trial court and the 9th Circuit Court of Appeals determined that the law did not require this step. The FMLA says that employers “may require” a second (or subsequent) medical opinion if they have “reason to doubt the validity of the [original] certification.” The law also stated that an “employer may require that the eligible employee obtain subsequent recertifications on a reasonable basis.” The key in those statutory passages was the word “may.” Generally, courts interpret the word “may” in a statute as permissive. A statutory provision is typically only mandatory if the statutory text uses the word “shall” or “must” instead of “may.”
In other words, the law merely gave employers the option to pursue additional opinions, but does not demand the employer seek out new medical experts when 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.”
Although the 11th Circuit Court of Appeals has not issued a ruling on this topic, all five federal appeals courts (the 2d, 4th, 6th, 8th, and 9th Circuits) have come down against the existence of an obligation to get a second opinion before contesting a certification.
As an employer, taking punitive action against an employee you believe has misused FMLA can be a very tricky process. It pays to ensure that you meet all of the law’s procedural demands at every step in the process. The knowledgeable Atlanta FMLA interference attorneys at the law firm of Parks, Chesin & Walbert can answer your FMLA questions and guide you throughout the process. Contact us through this website or at 404-873-8048 to schedule a consultation today.