FMLA Second and Third Opinions: Decertifying FMLA Leave

DMEC Staff@Work

Navigating the Process to Decertify FMLA Leave and Subsequent ADA Actions

By Gail I. Cohen, JD

Director, Employment Law & Compliance
Matrix Absence Management

Employers often wonder, once they have that “final and binding” third opinion, what they should do about all the absences the employee previously reported as Family and Medical Leave Act (FMLA) leave? While the regulations do not tell employers what to do, this column will set forth a recommended best practice, along with ramifications for request for leave as an accommodation under the Americans with Disabilities Act (ADA).

Pending Absences

The FMLA requires employers to approve or deny FMLA within five business days of receipt of a complete and sufficient certification.1 The exception to this rule occurs when the employer decides to pursue a second opinion. It can take several weeks, or even months, to select the second and/or third opinion providers and schedule the appointments.

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