Given the financial and administrative costs that FMLA continues to impose upon employers, HR managers are consulting with counsel to determine what tools are available to ensure that those who truly need FMLA leave are able to get it. One commonly used tool is to obtain second opinions to verify the accuracy of an initial medical certification.
The FMLA in 29 U.S.C. § 2613(c) and its regulations, 29 C.F.R. § 825.307(b) and (c), permit employers to obtain additional medical opinions regarding the certification of an employee's "serious health condition." An employer's ability to obtain these opinions is limited, however, as the employer must have some "reason to doubt the validity" of the initial opinion, whether it is the validity of the certification itself or whether the contents of the certification are internally inconsistent. See 29 C.F.R. §825.307(b); Smith v. Hope School, 560 F.3d 690 (7th Cir. 2009) (affirming the grant of summary judgment to employer where employee added a condition to her certification that her doctor did not diagnose, thereby altering the FMLA certification that her doctor had already completed); Miller v. Northwest Airlines, Inc., 2013 WL 5425420, at *10-11, 26-27 (D. Minn. Sept. 27, 2013) (granting summary judgment on FMLA entitlement claim where employer sought second opinion regarding a certification that presented conflicting information regarding the employee's condition, namely that the employee could work full-time but would need up to 20 hours per week of leave).
There is little case law explaining specific circumstances that constitute a sufficient reason to doubt the validity of a medical certification. Many cases simply quote the text of the statute and implementing regulations without providing further explanation or guidance on what the FMLA and the regulations contemplate as a sufficient "reason to doubt the validity of the certification." Appearing to go against the grain of most cases, however, the court in Albert v. Runyon, 6 F. Supp. 2d 57 (D. Mass. 1998), held the employer to a higher standard, as the employer was criticized (and ultimately received an adverse judgment) for failing to show a "specific" reason that it suspected that the initial medical opinion that the employee could return to work was unworthy of credence. Id. at 64-65.
Although neither the FMLA nor its regulations state that a "reason to doubt the validity" of a certification needs to rise to the level of actual fraud by the employee (as in Smith), if an employer wishes to require a second opinion, employers would do well to document the specific reasons that they have to question the initial certification before doing so. In the case of intermittent leave, a pattern of Monday and Friday absences could justify a second medical opinion. In this way, employers can ensure that FMLA leave does not become more than what was intended at the time Congress passed it.