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Don’t use second opinion to reject FMLA leave–request a ‘tiebreaker’ opinion

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in FMLA Guidelines,Human Resources

The FMLA lets employees take up to 12 weeks off for their serious health conditions. It is up to the employer to request a certification from the em­­ployee’s health care provider.

If the employee gets a certification showing she has a serious health con­dition, you can request a second, independent assessment. But if the second opinion says the condition isn’t serious, that’s not the final word.

FMLA regulations require a third opinion as the tiebreaker.

Recent case: Mary Harnan began suffering from severe headaches soon after her supervisor began criticizing her and after she complained about sex discrimination. Harnan got her doctor to certify that the headaches created a “serious health condition” qualifying her for FMLA leave.

Harnan’s supervisor sent her to another doctor, who declared Harnan fit to work without restrictions. That’s when the supervisor ordered Harnan back to work. She returned, but was fired shortly after.

Harnan sued, alleging interference with her right to FMLA leave.

The court agreed that demanding that she return to work was interference. It declared that the employer should have demanded a third, bind­ing examination. (Harnan v. Uni­ver­sity of St. Thomas, No. 10-554, DC MN, 2011)

Final note: Remember that you must pay for the second and third eval­u­ations. The medical provider doing the assessment cannot be connected to your organization. You and the em­ployee should jointly agree on the health care provider who will conduct the third assessment.

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