FMLA Second and Third Opinions: Good Faith Obligations

Tasha Patterson@Work


Good Faith Obligations in the Second and Third Opinion Process

Good Faith Obligations_Second and Third OpinionsBy Gail I. Cohen, JD

Director, Employment Law & Compliance
Matrix Absence Management

When employers use second and third opinions to curb Family and Medical Leave Act (FMLA) abuse, employees are obligated to cooperate in good faith, or face consequences for failing to do so.

Employee Obligation to Release Medical Information

If a provider designated to conduct the second opinion on your employee needs more information to better understand the serious health condition in the employee’s FMLA leave request, the provider can ask the employee to sign an authorization allowing release of relevant medical records regarding that condition. If the employee fails or refuses to sign the release, one of two possible consequences can occur:

  1. If the second opinion provider cannot render a complete and sufficient opinion without the needed records, the employer can deny the employee’s request for FMLA leave for that condition; or
  2. More often, the second-opinion provider completes the FMLA certification, but the employee contests the results because the opinion is based on the brief office visit to complete that certification.

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