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Is your employee’s doctor an ‘FMLA specialist’?

by on
in FMLA Guidelines,HR Management,Human Resources

It happens more often than you might think. An HR office begins receiving an unusual number of FMLA certifications from the same doctor. The sudden deluge happens during peak production times and/or when employees are required to work mandatory overtime. The “serious medical conditions” being certified seem mostly to be based on psychological conditions such as stress and anxiety.

It all points to what amounts to a scam: Employees have found a sympathetic health care provider to help by providing medical certifications attesting to the need for intermittent leave.

If you spot such a trend, don’t hesitate to insist on second and possibly even third medical opinions. The FMLA allows employers to get such certifications when they have a reasonable belief that the first certification isn’t quite legitimate (see below).

Recent case: Leonard Platt was a crew dispatcher for CSX Transportation. His doctor completed an FMLA intermittent leave certification that said Platt suffered from the chronic serious condition of “depression and anxiety, irritability that interfered with work concentration.” It called for Platt to take time off during flare-ups and skip overtime at his discretion.

HR asked for a second opinion because the same doctor had signed many similar FMLA certifications. Each cited the same kind of conditions and gave the employee discretion on when to take off.

Platt’s second opinion said he did not have a serious health condition. Since the two certifications contradicted each other, CSX asked Platt to provide three names of doctors who could provide a third, tie-breaking certification. He did, and CSX picked one. The third certification was similar to the first, so CSX approved the FMLA leave.

Platt sued anyway, alleging CSX had no legitimate reason to put him through the evaluation process.

The court disagreed. It said a pattern like the one CSX noticed was reason enough. Plus, it said Platt lost nothing—he was allowed to take intermittent leave during the evaluation process. (Andrews, et al., v. CSX Transportation, No. 3:06-CV-704, MD FL, 2009)   

The law on second and third FMLA opinions

“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. Pending receipt of the second opinion, the employee is provisionally entitled to the benefits of the Act ...

“The employer is permitted to designate the health care provider to furnish the second opinion, but the selected provider may not be employed on a regular basis by the employer …

“If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be designated or approved jointly by the employer and the employee.”

-- U.S. Department of Labor FMLA regulations, 29 CFR 825.307

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