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- Family and Medical Leave Act Advisor

Medical Certification - Second and Third Opinions

Second Opinion

An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense.

Pending receipt of the second, or third, medical opinion, the employee is provisionally entitled to the benefits of the FMLA, including maintenance of group health benefits.

  • If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies.
  • If the employee or the employee's family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition if requested by the second opinion health care provider in order to render a sufficient and complete second opinion, the employer may deny the taking of FMLA leave.

The employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the employer. The employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited.

Third Opinion

If the first and second opinions provided differ, the employer may require the employee to obtain certification from a third health care provider, at the employer's expense. This third opinion will be final and binding.

The third health care provider must be designated or approved jointly by the employer and the employee. The employer and the employee must each act in good faith to attempt to reach agreement on whom to select for the third opinion provider.

  • If the employer does not attempt in good faith to reach agreement, the employer will be bound by the first certification.
  • If the employee does not attempt in good faith to reach agreement, the employee will be bound by the second certification.

If the employee or the employee's family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition if requested by the third opinion health care provider in order to render a sufficient and complete third opinion, the employer may deny the taking of FMLA leave.

Travel Expenses

If the employer requires a second or third opinion, the employer must reimburse an employee or family member for any reasonable "out of pocket" travel expenses incurred to obtain the second and third opinions.

  • The employer may not require the employee or family member to travel outside normal commuting distance for purposes of obtaining the second or third opinions except in very unusual circumstances.

Copies of Opinions

The employer is required to provide the employee with a copy of the second and third medical opinions, where applicable, upon request from the employee. Generally, requested copies are to be provided within five business days.

Continue to Recertifications or Return to Required Documentation/Certifications from Employees.

For more information on this aspect of the FMLA, see the FMLA regulations: ยง 825.307