FMLA Disputes: Are PIs helpful?

 

I came across an article that might contain some helpful guidance for FMLA disputes.

As you know, the Family Medical Leave Act ("FMLA") is a federal law that guarantees an employee's job (or a similar job) following an absence due to sickness or caring from a qualified individual. Generally, FMLA generally allows an employee who meets the eligibility requirements up to 12 weeks of unpaid leave in a one-year period. Health benefits must continue throughout the FMLA leave and no retaliation or discrimination can be used against the employee for requesting or taking this leave.

A substantial amount of FMLA case law comes out of California because California has a similar law (CFRA) modeled after the FMLA and it contains similar provisions, such as clauses that govern challenges to medical certifications.

This article discusses a particular aspect of FMLA/CFRA. When employees request FMLA/CFRA, the employee can request medical certification. Previously, if the employer doubted the validity of the certification, the employer could require the employee to get a second medical opinion at the employee's cost. If the first and second opinions differed, the employer could pay to get a third medical opinion to break the tie.

However, the Ninth Circuit (the federal circuit that includes California, Oregon, Washington, Idaho, Alaska, Arizona and Hawaii) recently ruled that a second (or third) medical opinion is not required to challenge the validity of medical verification provided by an employee. In fact, according to the ruling, an employer may contest the first medical certification based on non-medical evidence.

The Facts

From the article:

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.

Takeaways

So what does this all mean for your business? It means that you might be able to contest questionable FMLA leave requests without medical evidence. It means that using a PI, or conducting an investigation (especially with an outside investigation) may be able to provide grounds to deny the leave or even terminate the employee for making a fraudulent claim.

Pro Tip

As frequently mentioned in this space, a proactive policy can often save time and trouble. Instead of causing a ruckus to do a one-off investigation, you may consider simply having a policy of "confirming" every leave request that involve light investigation. Having this policy is likely to accomplish two things: 1) false claims will be found out; and 2) once employees understand that every leave claim is subject to a confirmatory investigation, false claims are extremely likely to go down. And that is the goal - to avoid downtime for fraudulent reasons.

 

This article originally appeared on LinkedIn.