Sims

OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION

Under the Family Medical Leave Act (“FMLA” or “the Act”), 29 U.S.C. § 2601 et seq., an eligible employee with a “serious health condition” is entitled to up to twelve weeks of medical leave. 29 U.S.C. § 2612 (a)(1)(D). An employer may require an employee seeking medical leave to provide certification that he has a serious health condition. If an employer has reason to doubt the validity of the medical certification presented by the employee in support of his request for medical leave, the employer “may” require the employee to obtain a second opinion. 29 U.S.C. § 2613 (c). If the second medical opinion differs from the first medical opinion, the employer “may” require the employee to obtain a third medical opinion. 29 U.S.C. § 2613 (d)(1). The third medical opinion “shall” be binding. 29 U.S.C. § 2613 (d)(2).

These cross-motions concern the employer’s right to challenge the employee’s initial medical certification in a later civil action under the Act, where it failed to exercise its option of requiring the employee to obtain second and third medical opinions. Specifically, the issue is whether defendant,…