A recent Eighth Circuit case emphasizes the deference that the courts will give to an arbitrator´s award. In Electrolux Home Products v. United Automobile Aerospace and Agricultural Implement Workers of America, filed August 5, 2005, the Eighth Circuit upheld the arbitrator´s award made under the union contract and the FMLA. In upholding the award the court noted the "extraordinary level of deference" given to the arbitrator´s decision. The court noted that the standard applied here is different (and more deferential) than its review of lower court decisions. The award will be upheld as long as it "draws its essence from the collective bargaining agreement." The Court stated: "While this standard may seem harsh to parties who lose in arbitration, this standard is justified because it is exactly what the parties mutually agreed upon by electing arbitration over judicial resolution of their conflicts."
In this case, the employee left work early due to stomach pains. She did not see her treating physician, but did see a physician´s assistant who diagnosed her with gastroesophageal reflux disease. The physician´s assistant did not certify the ailment as incapacitating or as protected by the FMLA. Two days later, the employer terminated the employee because she had not submitted a leave form certifying the absence as an FMLA occurrence (and had used up all her unexcused absences thus qualifying as a terminating event under the union contract). Four days later the employee saw a nurse practitioner who did certify the absence as an FMLA occurrence, stating that her condition may cause episodic absences due to the illness and that during times of acute onset of symptoms, the employee was unable to work. These documents were submitted to the employer who rejected them because they were not from her treating physician and because of the number of days that had passed since the occurrence. The employee then filed a grievance under the union contract which mandated arbitration.
The arbitrator found that the evidence was sufficient to show that the absence was an FMLA occurrence. He found that the second opinion was a proper medical certification under the FMLA. The arbitrator found that it did not matter whether the nurse practitioner was the employee´s treating physician so long as she was a health care provider under the statute. The arbitrator ordered reinstatement of the employee and payment of back wages.
On appeal, the employer argued that the employee did not have a right to a second opinion under the FMLA and that obtaining this opinion was "doctor shopping." The employer further argued that the certification was insufficient under the FMLA requirement that the medical condition render the employee unable to work.
The court found that there was nothing in the statute or the case law that prohibits the employee from obtaining a second opinion that contradicts a prior negative certification. The second issue, i.e., whether the arbitrator´s conclusion that this was an FMLA occurrence was a much closer call, but under the deferential standard applied to an arbitration award, it would be affirmed, finding that although the nurse practitioner did not expressly state that the employee was incapacitated, she implied as much.
Questions regarding FMLA issues? Contact Attorney Faye Witt, who authored this article, at fmw@hanftlaw.com or 218-529-2428, or Kathy Bray, at ksb@hanftlaw.com or 218-529-2427.
