FMLA Second and Third Opinions: Making Full Use

DMEC Staff@Work

Making Full Use of a Second or Third Opinion under the FMLA

By Gail I. Cohen, JD

Director, Employment Law & Compliance
Matrix Absence Management

This series has explored best practices for employers using second and third opinions under the Family and Medical Leave Act (FMLA) as a valuable tool to combat excessive intermittent FMLA absenteeism. This column will provide some final pointers for how long an employer can rely on those opinions, and under what circumstances it would not be appropriate to do so.

When Do Second and Third Opinions Govern the Employee’s FMLA Leave?

An earlier column noted that if an employee fails to cooperate in good faith in the selection of the third opinion provider, the employee is bound by the second opinion results. So, how long can the employer hold the employee to the second opinion results? Unfortunately, the answer isn’t found in the regulations.

However, the regulations are clear that the third opinion is “final and binding.” What does that mean? Again, no explicit guidance in the regulations!

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