In a surprising turn of events, the Ninth Circuit’s latest decision regarding employer-compliance under the Family & Medical Leave Act (FMLA) and by extension the California Family Rights Act (CFRA), hinged upon basic grammar. This case emphasizes the importance of choosing your words carefully—and the consequences when you fail to do so.

Background

Tomas Perez brought suit against his Nevada former employer, Barrick Goldstrike Mines, Inc., for wrongful interference with his FMLA rights and retaliatory discharge following leave under the FMLA.^[i] After Perez took medical leave under the FMLA for an alleged work-related injury, he returned to work where he was confronted with an employee report and private investigation findings.[ii] Barrick then fired Perez after concluding he had faked his injury and violated company policy.[iii] A jury found Perez failed to show by a preponderance of the evidence that he suffered a serious health condition which prevented him from performing his job under the FMLA or that his termination was because of his filed worker’s compensation claim.[iv]

Dispute

At the core of this case is the question of whether an employer must present contrary medical evidence to defeat a doctor’s certification in an FMLA interference claim.

May or Must?

An interference claim under the FMLA and CFRA simply requires the employer deny the employee’s entitlement to FMLA leave.[v] An employee is entitled to FMLA leave if they have “a serious health condition that makes them unable to perform the functions of the position.”[vi] A “serious health condition” is an “injury” that involves “continuing treatment” by a health care provider—or a period of incapacity of more than three consecutive calendar days.[vii]

Under the FMLA, an employer may “require that a request for leave” due to a serious health condition “be supported by a certification” from a health care provider.[viii]  Where an employer has reason to doubt the validity of the certification under § 2613(a), the employer “may require” the employee, at the employer’s expense, to obtain the opinion of a second or third health care provider or seek recertifications on a reasonable basis.[ix] Perez contended only contrary medical evidence can defeat a doctor’s certification of a serious health condition under the FMLA.[x]

The Ninth Circuit aptly noted § 2613(a)’s use of “may” under English grammar connotes permissiveness as opposed to a mandate or requirement.[xi] In other words, the FMLA “does not require an employer to provide contrary medical evidence if it doubts the validity of the original certification.”[xii]

Takeaways

What does this mean for California employers? An employer’s right to exercise options under § 2613(a) of the FMLA are further solidified.

Employers have the option to require employees to request for leave due to a serious health condition and further, require employes to support the request with a certification from a health care provider. If an employer has chosen this route and has reason to doubt the validity of a certification of a serious health condition under § 2613(a), the employer “may require” a second or third opinion or recertification. Employers are not required to seek a second or third opinion or recertification prior to challenging the validity of the subject certification in later litigation of interference claims under the FMLA or CFRA.

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Sources

[i] Perez v. Barrick Goldstrike Mines, Inc., 105 F.4th 1222, 1223-1224 (9th Cir. 2024)

[ii] Id. at 1224

[iii] Id.

[iv] Id.

[v] Faust v. California Portland Cement Co., 150 Cal. App. 4th 864, 879 (2007) [citations omitted]

[vi] 29 U.S.C.A. § 2612(a)(1)(D) (West)

[vii] 29 U.S.C.A. § 2611(11) (West); see also 29 C.F.R. § 825.115(a)

[viii] 29 U.S.C.A. § 2613(a) (West)

[ix] 29 U.S.C.A. § 2613(c)-(e) (West)

[x] Perez, 105 F.4^th at 1224

[xi] Id. at 1225.

[xii] Id.