Can Employers Be Sued for Restricting the use of Certain Doctors for Disability Certifications?

Posted by Jason Shinn on March 12, 2012

Doctor.jpgIt is never easy being an employer when it comes to issues at the intersection of employees and medical issues. But at least many of these issues are based on statutes and regulations, which (more or less) outline an employer's responsibilities. 

But a recently dismissed claim against an employer by a doctor and his medical practice offers a reminder that lawsuits arising out of employee medical issues are only limited by creativity and imagination of lawyers and their clients.

Specifically, an employer, GM, was sued for claims of defamation, business defamation, and tortious interference with a business relationship against a medical practice and its doctor. These claims arose after the employer advised its employees that it would no longer accept disability certifications or excused absences from both the doctor and the clinic. See Athar Siddiqui, M.D. & Med. Assocs., P.C. v. GM Co. 

In this case GM, as the defendant employer, sent a "notice letter" to its employees. The letter contained a list of ten physicians and stated:

Under the provisions of the General Motors Life and Disability Benefits Program for Hourly Employees, certification from the physicians listed below will no longer be regarded as proof of disability or accepted as an excused absence by General Motors.

. . . Dr. Athar Siddiqui—Internal Medicine, Ypsilanti, MI ...

Plaintiffs (the doctor and the medical practice) demanded that GM immediately retract the letter and issue a corrective notice removing Dr. Siddiqui from the list of excluded physicians. GM refused and both and Plaintiffs filed a civil complaint, alleging defamation by implication, business defamation, and tortious interference with a business relationship.

Overview of Defamation under Michigan Law

Under Michigan law in order to make a valid defamation claim the Plaintiffs had to show: (i) A false and defamatory statement concerning the plaintiff; (ii) An unprivileged publication to a third party; (iii) Fault amounting at least to negligence on the part of the publisher; and (iv) Either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod).

GM filed a Motion to Dismiss the lawsuit asserting that Plaintiffs could not state a claim for defamation. In response, the Plaintiffs argued that they had pleaded sufficient facts to fulfill the elements of defamation by implication. Specifically they alleged:

10. The Notice imputes fraud, deceit, dishonesty or reprehensible conduct by Dr. Siddiqui in his treatment of patients and/or certification of their disabilities or excused absences.

* * *

13. The Notice threatens the addressees with the statement that "disability claims requested on or after October 1, 2010 will not be payable" if certification is provided by Dr. Siddiqui, which implies that the addressees should discontinue treatment or any further dealings with Dr. Siddiqui and/or Medical Associates.

The Court Dismisses the Defemation Claim

The Court agreed with GM and reasoned its notice letter simply stated that GM would no longer accept proof of disability or excused absences from Dr. Siddiqui and that the alleged defamatory implications of the statement—that Dr. Siddiqui was guilty of fraud, deceit, or dishonesty—were simply too tenuous to support a defamation claim. 

In reaching this conclusion, the Court noted that GM's letter contained other statements that undercut any defamation claim, including the following:

  • "Nothing in this letter otherwise changes your ability to be provided services or treatment from the above listed physicians;" 
  • "this change does not impact your ability to utilize these physicians for purposes of an FMLA leave, Workers' Compensation leave or under the terms and conditions of the GM Health Care Program for Hourly Employees." 
  • GM approved of the doctor's services and treatments for purposes of FMLA leave, for Workers' Compensation leave, and in conjunction with defendant's Health Care Program for Hourly Employees. Thus, a reasonable person reading the statements in their proper context would not conclude that defendant intended patients to discontinue their services and treatments with the doctor and the clinic because either were guilty of fraud, deceit, or dishonesty. 
  • Further, the letter noted that "[e]ven though GM will not accept certification from these physicians for the purposes of establishing an excused absence or proof of eligibility for disability benefits, GM is not suggesting that these physicians provide inadequate care."

The Take Away

It is no secret that employees, employers, and their respective lawyers all have their "go to" doctors for various situations. In this case, however, GM made a business decision to limit the use of the subject doctor and his practice and drafted a carefully worded notice letter explaining this decision. 

Depending upon the circumstances, employers have the opportunity to set some conditions and even have some involvement over an employee using a particular doctor when it comes to certain employment related issues. For example, employers are permitted to require an employee seeking leave for a serious health condition or to care for a qualifying family member with a serious health condition to submit a medical certification completed by a health care provider. 29 USC 2613(a); 29 CFR 825.305(a). And an employer who questions the validity of the health care provider’s determination may challenge that certification by requiring the employee to obtain a second opinion. 29 USC 2613(c)–(d); 29 CFR 825.307(b)(1).

But in addition to complying with applicable statutory and regulatory law, the above defamation claim is a good reminder that employers also need to take a comprehensive risk management perspective beyond just the applicable employment related statutes and regulations when setting conditions for employees' selection of medical providers.

At the end of the day, regardless of your view of the subject doctor's credentials - or lack thereof - taking a route similar to that of GM and distributing a professional, fact-based notice letter will go a long way towards avoiding a lawsuit or otherwise providing a basis for dismisal.

Taking Note of How Family and Medical Leave Act Interference Claims to be Decided

Posted by Jason Shinn on January 24, 2012

Yellow NotepadThe Sixth Circuit recently resolved an issue of uncertainty for Michigan employees and employers when it comes to analyzing Family and Medical Leave Act (FMLA) interference claims. Going forward, employees must satisfy the burden-shifting framework common to employment discrimination claims when evaluating FMLA interference claims. 

FMLA Background

The FMLA, 29 USC 2601 et seq., was originally enacted to balance the demands of the workplace while providing employees the ability to take reasonable leave for personal or family medical reasons.

Among the FMLA's statutory requirements, it imposes on employers two prohibitions to ensure that employees will not suffer an adverse employment action for taking FMLA protected leave. Specifically, under the interference provision, "[i]t shall be unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter."

Under the discrimination provision, it is unlawful for an employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the FMLA. Congress modeled this provision after Title VII of the Civil Rights Act, as under the Civil Rights Act an employee is protected from employer retaliation for opposing a practice protected under that act.

How FMLA Interference Claims against Michigan Employers are Decided   

In the Sixth Circuit (the Federal Jurisdiction that includes Michigan), there was no dispute that what is known as the McDonnell Douglas burden-shifting framework applied to FMLA retaliation suits (as opposed to interference claims) when the plaintiff produced indirect evidence of a causal connection between the protected activity and the adverse employment action.

Under the McDonnell Douglas burden-shifting framework a plaintiff must make out a prima facie case of discrimination by showing that (1) The employee availed herself of a protected right under the FMLA by notifying the employer of the employee's intent to take leave; (2) The employee suffered an adverse employment action; and (3) That there was a causal connection between the exercise of the employee's FMLA rights and the adverse employment action. If the employee satisfies these three requirements, the burden then shifts to the employer to proffer a legitimate, nondiscriminatory rationale for discharging the employee.

Prior to the Donald v Sybra court opinion it was unsettled (sort of) if the preceding burden-shifting framework applied to FMLA interference claims. The Donald Court resolved this issue in favor of applying the McDonnell Douglas burden-shifting framework.

Interestingly, the Court concluded that this issue had actually been decided by a prior court opinion (Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008)) because that court opinion effectively adopted the McDonnell Douglas test without saying as much (under federal procedural rules, a reported panel opinion like the Grace opinion are binding on subsequent courts. See 6 Cir. R. 206(c)). 

use “[r]eported panel opinions are binding on subsequent
panels,” 6 Cir. R. 206(c),

The Take Away

From a practical standpoint, the Donald opinion is not a game changer in that employers, employees, and their attorneys are intimately familiar with the McDonnell Douglas framework, which had long been applied to FMLA retaliation suits. 

A more interesting question, however, was asked by Jon Hyman of the Ohio Employer's Law Blog of whether the McDonnell Douglas test should be scrapped entirely.

For employers, a more practical take-away from this case is that an employee may be lawfully terminated for legitimate business reasons even when FMLA leave is in play. 

Consider for example that in Donald the employee had worked for the employer for over two years. And during this time she had experienced a number of health problems that forced her to miss a substantial periods of work. But Donald was fired only after the employer suspected that she entered customer orders improperly to steal cash from her register. Thus the Court of Appeals agreed with the trial court that the employee failed to produce sufficient evidence to prove that her employer's stated reasons, cash register and order irregularities, were pretextual. Therefore, the employer did not violate the FMLA because its termination decision was based on legitimate, non-discriminatory reasons. 

Terminating an employee who has excercised FMLA rights, however, is not without risks. But by collaborating with an experienced employment lawyer, these risks can be managed in order to put the employer in the best position for successfully defending against a prospective FMLA discrimination claim.