Decisions of Interest

An employer's failure to seek a supplementary medical examination, after questioning an employee's certification of inability to work, is not a “willful” action for purposes of extending the FMLA statute of limitations from 2 to 3 years. Porter v. New York University School of Law, 2003 WL 22004841 (S.D.N.Y. 8/25/03) (Griesa, J.).

In seeking leave under the FMLA, the employee submitted a physician's certification to substantiate his alleged inability to perform the essential functions of his job. The certification was repudiated by a report of the employer's physician. Without scheduling any further examinations, the employer denied FMLA leave to the employee. More than 2 years later, the employee brought an unlawful termination suit contending that the employer's failure to schedule a third examination to resolve the conflicting reports of the two physicians was a willful violation of the FMLA. The court rejected the employee's argument and ruled that the FMLA calls for a third medical opinion to resolve a dispute between the employer and employee only upon the discretion of the employer. Citing to the language of the statute, the court noted that the requirement of additional medical documentation is permissive, not mandatory. Accordingly, plaintiff's claims were subject to the 2-year statute of limitations, not the 3 years allowed for willful violations.