by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
July 29, 2019
Readers of DMEC @Work Magazine know I have been writing a series of articles on recommended best practices using the 2nd and 3rd opinion process to manage intermittent FMLA leave. Readers of this blog who have not read my articles (tsk tsk…as if!), well you are in luck because today’s blog post will be a Cliff Notes™ version summarizing the key takeaways from each of those articles!
January 2019 Issue: When Can an Employer Request a 2nd Opinion and Why Would I Want to Spend Money to Get One?
An employer can only request the employee attend a 2nd opinion before approving FMLA leave for the employee’s or family member’s “serious health condition,” in connection with a new leave request, or initial certification at the start of a leave year.
Strategic use of the 2nd opinion process is a good investment for employers. The advantages we have seen include the “grapevine effect” in the workplace, organically increasing employee awareness that you are managing leave usage. This increased awareness can often result in reduced frequency and duration of employee leaves.
March 2019 Issue: What Does it Mean to Have “Reason to Doubt the Validity” of an Employee’s Certification?
The FMLA for an employer “who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer’s expense.” (29 C.F.R. §825.307(b)) Like so many things about the FMLA, there is no definition of what would provide employers with that “reason to doubt.” At Matrix, we spend a lot of time thinking about things like this! Some of the (perhaps obvious?) circumstances we have identified that warrant an employer to consider pursuing a 2nd opinion include:
- clearly excessive leave parameters in the employee’s certification for the condition;
- leave certified by a healthcare provider that does not seem appropriate for the condition
(e.g., an ophthalmologist certifying depression); and
- a healthcare provider certifying leave for an employee who is a relative or close friend.
May 2019 Issue: Use of Onsite Medical Personnel in Evaluating Whether to Pursue a 2nd or 3rd Opinion
Many employers have onsite medical personnel, or doctors with whom they have a relationship, who can be consulted in connection with the decision whether or not to seek a 2nd opinion. These personnel are prohibited by FMLA regulations from actually performing the 2nd opinion exam, but it does not mean they cannot otherwise be helpful. For example, when you read the employee’s certification and you identify that the frequency and/or duration of estimated leave seems excessive, a medical provider can add heft to that decision by reviewing it as well to confirm (or contradict!) your impression.
July 2019 Issue: What Does it Mean to Act in Good Faith in the 2nd/3rd Opinion Process?
Once the 2nd opinion results are received, if the results differ from the employee’s certification, the employer has a choice to either:
- accept the employee’s certification and manage the leave to those parameters; or
- send the employee to a 3rd opinion, again at employer expense.
If the employer elects to require a 3rd opinion, the regulations require the employer and employee to “act in good faith” in the selection of the 3rd opinion provider; but again, they don’t tell you what that means! We think a process that meets this standard includes the employer proposing 2-3 providers whose specialty is appropriate for the employee’s condition and whose offices are located in the employee’s general vicinity. Like the 2nd opinion provider, the 3rd opinion provider can’t be someone the employer has previously consulted.
The employee is then given the option of selecting one of the employer’s suggested doctors, or identifying one or more of his own choice – with the same criteria that the employee’s doctor be in an appropriate specialty and with whom he has not previously consulted.
More to Come!
There are two more articles in my series that will be published in September and December: In the September issue, I will discuss best practices for what an employer should do about any absences the employee reports while the 2nd/3rd opinion process is pending. My final column will give guidance to employers on other issues unanswered by the regulations, such as how long the employer can rely on 3rd opinion results.
Read the Full Articles. You can read my column articles here at DMEC.org. If your organization isn’t already a DMEC member, here’s another reason to join!
MATRIX CAN HELP!
At Matrix Absence Management, we administer FMLA leaves for employers day in, day out, every day and have seen firsthand how thoughtful, strategic use of the 2nd/3rd opinion process can lead to beneficial results. Want to harness that expertise? Contact us at firstname.lastname@example.org or through your Account Manager.