This five-part series offers guidance to employers on addressing intermittent Family and Medical Leave Act (FMLA) leave abuse.  There are options available to employers through the FMLA regulations, but also some non-regulatory options.  In the first posting, we looked at verification of medical certifications and insufficient certifications.  Here, we’ll take a look at second and third medical opinions.

Certification – Second and Third Opinions

An individual who appears to be “gaming” the system may be that unique case in which invoking the right to obtain a second and third opinion under the FMLA makes sense.  29 C.F.R. § 825.307(b) and (c).  The additional opinions, obtained at the employer’s expense, come into play when an employer has reason to doubt the validity of the certification.  An employee is entitled to FMLA leave provisionally until the issue is resolved.

The employer may designate the HCP to provide the second opinion, but it may not be an HCP with whom the employer regularly does business, unless the employer is located in an area where access to health care is extremely limited.

If the second opinion differs from the first, the employer may require the employee to obtain a third opinion, from a mutually agreed upon HCP.  Both the employee and employer must act in good faith in selecting the third HCP.  The third opinion will be final and binding.

In the next posting, we’ll discuss when an employer can require recertification of the employee’s serious health condition.