The United States District Court for the Middle District of Pennsylvania recently addressed the proper role of employer-sought second opinions, as well as third opinions, in FMLA cases. Wert v. The Pennsylvania State University (April 15, 2022).
Brenda Wert was an accountant at Penn State University. She had a medical certification allowing her to take one day of FMLA leave per week for migraines. When she started taking more time, Penn State asked Wert to provide an updated medical certification. Wert’s doctor found that she may need to take off up to four days a week because of migraines.
Penn State exercised its right under the FMLA to have a doctor of its choice evaluate Wert. All good so far. The doctor selected by Penn State found that Wert’s condition did not warrant FMLA at all. While this conflicted with the opinion of Wert’s physician, Penn State did not seek a third opinion. Instead, Penn State told Wert that she would no longer be able to take FMLA for her migraines, and it rejected her attempt to do so. Instead, Wert used ordinary sick leave. Four months later her employment was terminated for attendance-related reasons.
Wert sued Penn State alleging two violations of the FMLA: interference and retaliation. The court dismissed Wert’s retaliation claim, but permitted her to pursue the interference claim. Penn State filed a motion in limine asking the court to determine that it lawfully relied on the second opinion to deny Wert’s continued use of FMLA leave. Presumably, such a determination would preclude Wert from using the updated medical certification completed by her own health care provider, or her own or her physician’s testimony, to establish that she had a serious health condition entitling her to FMLA leave during the last four months of her employment. According to Penn State, the second opinion trumped any previous conflicting opinion.
Penn State argued it could rely on the second opinion because obtaining a third opinion was optional. When faced with conflicting medical opinions, the statute provides “the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer and employee . . .” Penn State relied on the use of the permissive “may” to claim it had no obligation to seek a third opinion. The court agreed an employer is not required to seek a third opinion, but it wrote, “it is downright wishful to think that the statute allows for anything but two options when a second opinion conflicts with the first: an employer may either accept the first or seek (and pay for) a binding third opinion.”
Penn State could have accepted the initial certification, or it could have followed the process for obtaining a third and binding medical opinion. According to the court, Penn State was “not entitled to simply award itself a tie” by relying on the assessment of the doctor it selected. The court denied Penn State’s motion, and at trial Wert may present evidence that she had an FMLA-qualifying serious health condition even after Penn State told her that she could no longer use FMLA leave for migraines.