If an employer has reason to doubt the validity of the initial submitted medical certification, they may require the employee to obtain a second opinion. The U.S. Department of Labor has clear guidelines around the use of second and/or third opinions under the Family and Medical Leave Act (FMLA). Here are key items to consider as you move through the process.
Key considerations:
- The second (or third) opinion should be scheduled promptly, and all associated costs are covered by the employer.
- Employers can choose the health care provider but generally should not select a provider it employs on a regular basis.
- If the first and second opinions differ, the employer may require a third opinion. The third health care provider must be approved by both the employer and the employee.
- The third opinion is final and binding.
- An employee can request copies of the second or third opinions, which must be provided to them within 5 business days of the receipt of request, unless extenuating circumstances prevent such action.
- This process must be applied uniformly to all employees to avoid disparate treatment.
Important: Employers can’t delay or deny FMLA leave while waiting for the second or third opinion, but they can retroactively deny it if the final opinion doesn't support the employee’s need for FMLA leave.
With the right knowledge and consistent procedures, FMLA doesn’t have to be a headache. By confidently navigating authentication, clarification, recertification and medical opinions, employers can protect both employee rights and business needs.
For additional information, check out Part 1 on understanding the distinction between authentication and clarification and Part 2 on recertification, or see Fact Sheet #28G: Medical Certification under the Family and Medical Leave Act | U.S. Department of Labor.
