Can an Employer Demand A Second Medical Opinion Before Approving FMLA Leave?

When it comes to requesting FMLA leave, employees must clear a couple of hurdles before they receive approval. First, they have to submit paperwork through their employer, and then they have to get a doctor to sign off on their request. But sometimes employers request a second opinion, leading employees to wonder whether that’s even allowed. It is in some cases, but not always. Knowing when a second medical opinion is permitted under the Family and Medical Leave Act and what protections apply while that process plays out can help employees understand their options.

Key Takeaways

• Employers can request a second medical opinion, but only under specific circumstances defined by the FMLA.
• The employer chooses and pays for the second health care provider, who cannot be someone regularly used by the company.
• If the second opinion conflicts with the first, a third, binding opinion may be required.
• An employee’s FMLA protections generally remain in place while the certification process is ongoing.

When Can an Employer Request a Second Medical Opinion After Receiving an FMLA Certification?

Once an employee submits a medical certification supporting the need for FMLA leave, the employer generally must accept it at face value. However, the law allows an employer to request a second opinion if it has reason to doubt the validity of the original certification.

This isn’t a blanket right to second-guess every request. The employer must have a genuine, documented basis for questioning the certification, not just a general suspicion or a desire to delay approval. Requesting a second opinion as a routine practice for every leave request, rather than in response to specific concerns, may run afoul of FMLA regulations.

Who Chooses and Pays for the Second Health-Care Provider?

If an employer decides to request a second opinion, it does not get to pick just any doctor. The health care provider must be one that the employer selects, but that provider cannot be employed on a regular basis by the company.

This requirement exists to prevent employers from steering third parties toward a provider who might be inclined to side with the business. Importantly, the employer is responsible for covering the full cost of the second opinion and if applicable must reimburse the employee and/or family members for reasonable travel costs incurred in getting the second opinion. Employees should not be asked to pay out of pocket, and they should not have to use personal time off to attend the appointment.

What Happens If the First and Second Medical Opinions Disagree?

When the two opinions conflict, the FMLA provides a resolution mechanism: a third medical opinion. This third provider must be jointly approved by the employee and the employer, and again, the employer bears the cost. Unlike the first two opinions, the third opinion is final and binding on both parties. 

What FMLA Protections Apply While Awaiting a Second or Third Opinion?

Waiting for a resolution can feel stressful, especially when a job or income is on the line. Fortunately, the FMLA provides important protections while the employer seeks a second or third opinion. Provided the original certification supports the need for leave, employees are generally entitled to the following protections:

• Provisional leave: Employers are generally required to grant leave on a provisional basis while the opinion process is ongoing. Employees should not be denied leave outright simply because the process has not concluded.
• Job protection: Employees retain the right to return to the same or an equivalent position after the process concludes.
• Continued health benefits: Employer-sponsored health coverage must remain in place during the waiting period.
• Protection from retaliation: Employers may not take adverse action against an employee for asserting their FMLA rights while the process is underway.

If an employer denies leave or takes adverse action before the process is complete, that may signal a violation of the employee’s rights under the law.

Guidance on FMLA Leave

Dealing with a serious health condition is difficult enough without also fighting to have medical leave approved. When an employer drags out the second opinion process, denies leave without proper justification, or retaliates against an employee for asserting FMLA rights, that employee does not have to face it alone.

The attorneys at Minnis & Smallets LLP have helped Bay Area workers hold employers accountable for FMLA violations, and they bring the same personal attention to every case they take on. Employees can reach out to Minnis & Smallets LLP today to discuss the situation and learn what options may be available.