Employers can request 2nd and 3rd opinions under FMLA

On Behalf of Dunlap Fiore, LLC |

Louisiana employers whose workers are covered under the Family and Medical Leave Act are required to adhere to the law when giving these employees time off. That, however, does not extend infinitely. If, for example, the employee has a medical issue that requires certification, the employee must provide that. An employee who does not provide that information might have the request for FMLA denied. The employer can request certification if the request is based on the employee’s health issue, a health issue for a family member, or if the request is based on military family leave. Certification is not necessary if it is for bonding time with a newborn child.

A health care provider must provide the certification. That can be a doctor, a dentist, a nurse practitioner, or a health care provider who is on the employer’s group plan, if any. The employer must inform the employee when there will be a certification request. The employee is required to provide the certification within 15 calendar days after the request is made. This can be flexible depending on the circumstances. If it is for planned or unforeseeable treatment of the employee or a family member, the certification must say the need for the treatment and an estimate of the dates and duration with recovery time.

The employer can ask for second opinion if it is not believed that the first certification is valid. The employer is required to pay for this and can select the health care provider to give the opinion. In general, the employer cannot select a provider that it regularly uses. If the second opinion is different from the first, the employer can then request a third opinion that the employer will pay for. Both employer and employee must approve the medical provider who will give the third opinion. The worker will generally be granted FMLA leave while waiting for the third opinion.

FMLA can be a complicated matter and there are sometimes disagreements as to its necessity. Employers have rights just as employees do. To protect from lawsuits based on FMLA and requests for second and third opinions or other issues, it is imperative to have legal assistance. A law firm that is well-acquainted with employment law from the perspective of the employer is crucial to FMLA cases and other matters related to employment regulations.

Source: dol.gov, “The Employer’s Guide to The Family and Medical Leave Act — The Certification Process – Second and Third Opinions, Chapter 4,” accessed on Oct. 31, 2017