Q: We have become more aggressive on suspected cases of FMLA abuse and, as a result, we have sent a greater number of employees for second and third opinions after they turn in medical certification. Once we have received the second or third opinion, how long can we rely on it? That is to say, can it be used to approve or deny absences now and for the same reason in the future?
A: Over the past couple of years, I have noticed an uptick in the number of my clients who are using the second and third opinion process as a tool to ensure employees are taking legitimate FMLA leave and to combat FMLA abuse. To them, I say bravo! These patient employers have realized that, over time, second and third opinions tend to deter fraudulent use of leave and are useful tools in the leave management process.
Overview of FMLA regulations regarding Second and Third Opinions
Under the regulations, an employer can seek a second opinion and third opinion (aka the "tie-breaker") if the employer doubts the validity of an initial medical certification provided by an employee. 29 C.F.R. § 825.307(b). For an employer who works through a second and third opinion process, it can be a time consuming and expensive process. In fact, it could be several months before an employer has a definitive answer after moving to the tie-breaker third opinion.
For the employer that prevails in the third opinion process, it clearly has an interest in making that third opinion stick as to absences of the same kind in the future. But here's the slight problem: the regulations are completely silent as to whether the second/third opinion results can be used to challenge an employee's request for leave in the future. As a result, employers have asked me: if the employee's medical condition is determined not to be a serious health condition through the second or third opinion process, what's to stop him/her from simply calling in the following week seeking leave for the same medical condition and making us go through the process all over again?
How Long Can an Employer Rely on a Second or Third Opinion?
My take is that the second and third opinion process is not a one and done situation. If this process is to have any meaning, employers must be able to rely on second and third opinions not only for the absence(s) presently in question, but as to future absences for the same reason.
This position has some support. First, the FMLA regulations do not prohibit an employer from using prior certifications to determine that the employee is not qualified for FMLA leave. Thus, if an employee’s serious health condition has been tested through the second/third opinion process, an employer arguably can rely on that certification for future absences. In other words, if the employer has clear guidance through the certification and/or the second/third opinion process that a condition is not a qualifying serious health condition under the FMLA, there is no obligation to deviate from the latest and most reliable information the employer has on file for the employee when designating leave in the future.
At least one federal court agrees with this approach. In Stoops v. One Call Communications, Inc., a federal appellate court grappled with this very issue. The court ultimately succinctly stated:
where an employer . . . receives a physician’s certification that indicates an employee’s serious health condition does not require him to miss work, the employer may rely on that certification until the employee provides a contradictory medical opinion." (emphasis added)
Under the reasoning in Stoops, an employer can rely on a second or third opinion “in the absence of some overriding medical evidence.” Therefore, where the employer informs the employee that it is relying on previous medical certification (e.g., a second or third opinion) to count particular absences against the employee under its attendance policy, this provides enough notice to the employee that he has an obligation to provide an alternative medical opinion. In other words, the employee must offer some “overriding medical evidence” suggesting that the previous certification is no longer reliable for the current request for leave.
Until then, employers, use the second and third opinion process to your advantage to ensure accurate and honest use of FMLA leave.