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FMLA users can shop around for favorable medical opinion

by on
in FMLA Guidelines,Human Resources

Issue: Employees can visit various doctors until they find one to approve their FMLA certification.

Risk: This increases the likelihood that you'll fall victim to FMLA fraud.

Action: Don't be shy about requiring your own second or third opinion if you doubt an employee's certification.

When an employee shows you a medical certification that says she has a serious condition qualifying her for FMLA leave, you don't have to blindly accept the doctor's word. You can ask for a second opinion. But here's what many employers don't realize: Employees can do the same thing.

If, as in the following case, the employee's first doctor isn't willing to say her condition qualifies for FMLA leave, she can go to a second (or third, or fourth) until she finds one who signs off on her "serious" condition.

As long as she meets the 15-day deadline to deliver the certification form to you, she's good to go.

Recent case: Deborah Cook was fired after exceeding her allowable number of absences. She asked her doctor to certify that her absence was due to gastroesophageal reflux disease and that her condition was "chronic" (therefore qualifying her for FMLA leave). He refused.

Cook called another doctor, who refused to overrule the first doctor without an exam. Going for the medical trifecta, Cook finally saw a nurse practitioner and got her to sign the FMLA certification, which Cook delivered to her employer within the prescribed 15 days.

When the employer refused to reinstate Cook, she filed an FMLA suit. The court sent her case to trial, saying Labor Department regulations allow employees 15 days to deliver a certification. Because those rules are silent on whether employees can ask for second opinions, Cook was free to do so. (Cook v. Electrolux Home Products, No. 04-3063, ND IA 2005)

Final tip: You do have a remedy in such cases. You can ask for another opinion if you doubt the employee's certification. If that second opinion contradicts the original certification, you can request a third, tie-breaking opinion.

You can choose the doctor for the second and third assessments, but you must pay for those visits.

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