In Chapen v. Munoz, No. 3:06-cv-00353-BES-VPC, 2009 U.S. Dist. LEXIS 15147 (D.Nev. Feb. 25, 2009), employee argued that the State employer interfered with her deceased husband's FMLA rights by directing him to submit a second health care provider examination. The husband had provided a medical certification in support of his request for FMLA leave. The direction to submit to a second health care provider exam violated the FMLA, Plaintiff argued, because the physician called for the second exam would ignore "etiology of the stress." Because the second physician would likely not agree that the husband was entitled to FMLA leave, the husband was placed in a "catch-22" situation and felt "compelled to resign." By putting him in that no-win situation, the State, Plaintiff argued, violated the FMLA.
The court granted the State's motion and dismissed the FMLA claim. The court noted that the FMLA allows an employer who has reason to doubt the validity of the a medial certification to obtain a second medical opinion at the employer's expense. Because the State had the right to require a second health care provider exam, the husband's refusal to agree to see the second specialist failed to act in good faith. Such refusal is not protected activity within the meaning of the FMLA. The fact that the second health care provider may not agree with the first did not justify the refusal to cooperate because the regulations permit the employee to seek an opinion from a third health care provider.
Comment: The opinion is interesting in two respects. First, the court appears to have assumed that the employer had reason to doubt the validity of the initial medical certification thereby justifying the employer's direction that the employee submit to an exam by a second health care provider. The court did not address why this was the case. Nor is it evident from the facts why the employer had reason to doubt the validity of the initial certification. This would appear to set a rather low bar for the circumstances when an employer has reason to doubt the validity of the initial certification.
Second, the court misread who has the right to invoke the right to an exam by a third health care provider. The court found that the employee's refusal to submit to a second health care provider exam was not protected because "the statute provides that in the case of conflicting opinions, the employee has the right to seek an opinion from a third health care provider..." That is simply incorrect. Under both the "old" and "new" regulations (29 CFR 825.307(c)), "if the opinions of the employee's and employer's designated health care providers differ, the employer may require the employee to obtain a certification from a third health care provider..."
Perhaps the Plaintiff would have fared better had they pointed out that the employer failed to articulate any reason to doubt the validity of the initial medical certification. If the facts warranted, the Plaintiff may have also been able to demonstrate that the employer has had an incredible knack for picking favorable second health care opinion providers (e.g., who find no serious health condition, or with greatly diminished need for FMLA leave) and the employer never or seldom invokes the third health care provider appeal process. Rather, the employer sticks with the more favorable second opinion. Combined, the above arguments might be enough to defeat a motion to dismiss/summary judgment.
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