Ninth Circuit approves video proof in FMLA certification case – Cyber Tech

The U.S. Ninth Circuit Courtroom of Appeals just lately dominated that it was acceptable for an employer to current non-medical, video proof from a employed non-public investigator at trial to display that an worker didn’t have a critical well being situation underneath the federal Household and Medical Depart Act (FMLA).

Worker’s Damage Declare Questioned as Surveillance Contradicts Prognosis
The worker sought day off from work after an alleged office harm that he didn’t report back to the employer till the top of his shift. The worker had no seen accidents, however based mostly on his complaints of ache, the well being care supplier identified him with a chest contusion and muscle spasms and took him off work for 18 days after the alleged accident. The employer discovered no bodily proof of an accident after which employed a non-public investigator to comply with the worker whereas on FMLA go away. The investigator captured video footage of the worker performing bodily actions in public view with no indicators of problem or discomfort.

Jury Backs Firm in FMLA Dispute, Worker Appeals Over Medical Certification
Following the worker’s return from FMLA go away, he was terminated for faking his harm and violating firm coverage. The worker filed a lawsuit, claiming that his employer’s actions interfered together with his FMLA rights. After watching the non-public investigator’s video throughout the trial, the jury returned a verdict in favor of the corporate. The worker appealed to the Ninth Circuit, saying the corporate ought to have been restricted to the preliminary medical certification as a result of it by no means challenged the certification by requesting a second opinion or a tiebreaker third opinion.

Courtroom Affirms Employer’s Proper to Use Video Proof Over Medical Certification in FMLA Case
The FMLA statute and laws state that an employer who has cause to doubt the validity of an preliminary medical certification “could” request the opinion of a second or third well being care supplier. (See the FMLA laws at 29 CFR 825.307.) The court docket concluded that asking for a second or third opinion is elective—on this case, the corporate was free to think about the video proof in deciding that the primary certification was fallacious (Perez v. Barrick Goldstrike Mines, Inc., ninth Cir, June 2024).

Ideas: It is a uncommon win for employers within the context of the FMLA. Rejecting an worker’s medical certification from a well being care supplier could be dangerous, so it’s typically greatest to intently comply with the laws to make sure success. Earlier than denying FMLA go away based mostly on an worker’s medical certification, see our Authorized Information, FMLA: Certification Procedures and our current Vigilant publication article, Q&A: Comply with FMLA procedures for verifying medical certifications (7/11/2024). Vigilant members can name their Vigilant Legislation Group employment legal professional with any particular questions.