In Perez v. Barrick Goldstrike Mines, Inc. (9th Cir. 2024) 105 F.4th 1222, the Ninth Circuit held that an employer may use non-medical evidence, such as private surveillance, to challenge the validity of an FMLA certification and terminate an employee for faking an injury. The court affirmed judgment for the employer, explicitly rejecting the rule from Sims v. Alameda–Contra Costa Transit Dist. (N.D. Cal. 1998) 2 F. Supp. 2d 1253 that a contrary medical opinion is required.

This decision confirms that employers are not limited to a “battle of the experts” and can use evidence of an employee’s actual conduct to rebut a certification they believe is fraudulent.