FMLA Second and Third Opinions: Certification Validity

DMEC Staff@Work

If an Employer Has “A Reason to Doubt the Validity” of an Employee’s FMLA Certification

Certification ValidityBy Gail I. Cohen, JD

Director, Employment Law & Compliance
Matrix Absence Management

Welcome to the second column in our series on best practices for employers to use second and third opinions to curb Family and Medical Leave Act (FMLA) abuse by their workforce. As we discussed in the January column, FMLA regulations require an employer to have a “reasonable basis to doubt the validity”1 of an employee’s original medical certification to request a second opinion exam.

While many terms are defined within the law, “reasonable basis to doubt the validity” is not one of them. Since it’s virtually impossible to imagine all the possible reasons to doubt, employers must settle for being alert to anything that brings pause. This column will offer our best-practice interpretation and some concrete examples to help you manage your own FMLA program.

Doubting the Validity of a Certification Based on the First Review

A medical certification is provided by the employee at the start of a new leave year to support their request for FMLA leave. At that time, a careful review of the certification is the first place to determine its validity.

Red flags can jump out while reviewing the certification, including:

  1. Excessive parameters of intermittent leave that do not seem consistent with the condition. For example, the employee’s physician states on the certification that the employee needs leave once per week, two days per episode, for migraines.
  2. A certification from a provider whose field of practice does not fit the employee’s condition. For example, an employee requests time off for heart problems but provides a certification from a podiatrist.
  3. A healthcare provider is a relative or close friend of the employee. Again, this may be apparent from reading the certification (same last name, for example).

Other Reasons to Doubt

  1. The employee’s leave history. An example is an employee with an ostensibly treatable condition who continues to request intermittent leave from year to year and the parameters never change or keep increasing annually.
  2. The employee who requests leave the very day he or she is eligible in a new leave year. This can be particularly questionable. This is the employee who exhausts 12 weeks of FMLA but shows up without any apparent need or request for intermittent leave as an accommodation under the ADA or state law; but as soon as he or she is aware that it is a new leave year with a replenished 12 weeks — lo and behold! — leave is requested.
  3. Doctors who certify conditions for many employees in your workforce. Sometimes, the treating provider who has signed the certification is the basis for doubting its validity; for example, the chiropractor whose name keeps appearing on certifications for your employees with the identical parameters of need for leave and the same or similar medical conditions.

Conclusion

Remember, you can only pursue a second or third opinion before approving leave for a new leave year. Employers who have “reason to doubt the validity” of an employee’s certification are wise to document those observations and send those employees for a second opinion. Doing so will go a long way toward curbing unnecessary or abusive use of intermittent FMLA leave. Employers are obligated to pay for the second or third opinion. This can be a substantial expenditure, so invest wisely. In our next column, we will discuss how nursing personnel can add heft to an employer’s decision to pursue this process.

Reference

  1. 29 USC §825.307(b).