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Failing to ask for 2nd and 3rd medical certs doesn’t bar later challenge to FMLA eligibility

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in FMLA Guidelines,Human Resources

The FMLA provides covered employees with up to 12 weeks of unpaid leave for a serious health condition. Employers can require a medical certification and get and pay for a second and third certification if they question the employee’s condition. But employers who don’t ask for the second or third certification aren’t forever barred from challenging the employee’s condition, as a recent Michigan case shows.

Recent case: Robert Mitchell worked for the Wayne County Sheriff’s Department until he didn’t show up for a random drug screen. Mitchell claimed he was fired because he took FMLA leave for a back injury.

At the time he took FMLA leave, the Sheriff’s Department didn’t challenge whether he had a serious health condition, as it could have done under the law. Mitchell said that meant his former employer was forever barred from questioning his FMLA eligibility.

Not so, ruled the federal court. Employers who don’t ask for a second or third opinion can still challenge eligibility. (Mitchell v. County of Wayne, No. 05-73698, ED MI, 2007)

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