FMLA Second and Third Opinions: Fighting Abuse

DMEC Staff@Work

Second and Third Opinions: A Key Employer
Weapon to Fight Employee FMLA Abuse

MLA Second and Third OpinionsBy Gail I. Cohen, JD

Director, Employment Law & Compliance
Matrix Absence Management

Employers have a right to seek second and third medical opinions under the Family and Medical Leave Act (FMLA). This column will provide an overview of the “second opinion” process and the benefits an employer can gain through thoughtful use of this process. It is very important that employers select cases strategically, focusing on cases with appropriate facts and circumstances, and devoting resources for the most favorable scenarios to ensure the most effective use of this often-costly tool.

The Rule in a Nutshell

An employer can require an employee to attend, at the employer’s cost, a medical appointment — for review, not for treatment — by an independent medical provider when the employer has reason to doubt the validity of the certification from the employee’s own healthcare provider (HCP). If the initial and second opinions conflict as to the appropriate parameters of an employee’s leave (e.g., the frequency and duration of flare-ups for an intermittent condition), the employer can require a third “tiebreaker” opinion from another HCP (again at the employer’s cost).

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