FMLA medical certifications can provoke questions if their validity is uncertain. But when can an FMLA medical certification be questioned to the point of requiring a second opinion? Is a manager’s hunch that the employee is lying enough?
When Can an Employer Require a Second Opinion on an FMLA Medical Certification?
Let’s say an employer has an FMLA-eligible employee who has come forward with a medical condition that would fit the FMLA requirements, but that employee’s manager doesn’t think the condition is legitimate. Should a second opinion be obtained?
If the medical certification form provided by the healthcare provider is complete, usually no further information may be obtained and the leave usually must be approved. “However, if there’s some reason to doubt the validity of the certification . . . as to condition for which the leave is requested, then there is this option to have a second medical opinion, and it’s at [the employer’s] expense.” Mary Topliff explained in a recent BLR webinar.
The key here is to understand what constitutes a valid reason to doubt the validity of the FMLA medical certification. Doubting the validity means either:
- We have reason to think it’s a fraudulent form (for example, not finding record of a doctor by that name anywhere).
- We have independent facts that conflict with the information on the form (for example, if an employee engages in activities that the form says they’re unable to do).
In these cases, a second opinion can be obtained and the employer must make all arrangements and find an appropriate provider and pay for the visit. If the second opinion conflicts with the original, a third opinion can be obtained, also at the employer’s expense. If this occurs, the third decision is binding. Getting the third opinion isn’t mandatory, but if the first two opinions conflict, then there’s a factual discrepancy and the employer has less ground to stand on if they follow only the second opinion.
In our scenario above, based solely on the manager’s assumptions, this employer would have insufficient reason to get a second opinion. There must be an actual reason to doubt the validity of the form.
For more information on getting second and third opinions of an FMLA medical certification, order the webinar recording of “FMLA Intermittent Leave: HR’s Guide to Overcoming Compliance Challenges.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Mary Topliff, Esq., founded the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance, while focusing on practical solutions to avoid costly legal issues. Topliff is also a published author and frequent speaker on legal issues impacting the workplace.