FMLA FAQ: How Long Can An Employer Rely On A Second Or Third Opinion Under The FMLA?

by Franczek Radelet P.C.

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.