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No second opinion? You can challenge FMLA leave later

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in Employment Law,FMLA Guidelines,Human Resources

U.S. Department of Labor regulations allow employers to challenge employees’ FMLA certifications. That is, employers aren’t stuck having to grant FMLA leave just because the employee’s doctor is willing to certify the patient has a serious health condition. Instead, employers can request a second opinion—at their own expense. If that opinion does not agree with the first certification, the regulations also authorize a third, tie-breaking opinion.

But what if you want to challenge an employee’s certification later—after you find out he’s been working elsewhere while on FMLA leave, for example? Are you stuck because you didn’t ask for the second and third opinion?

No. You can challenge the certification later if you have good reason to believe the employee really isn’t (or wasn’t) entitled to leave.

Recent case:
James Weimer hurt his head while working at Honda and went to the company’s off-site medical providers. Those doctors certified that he needed a few weeks of FMLA leave. Then Honda heard that Weimer had been doing construction work at his house while supposedly unable to work because of the head injury. It disciplined him for dishonesty.

Weimer sued, alleging interference with FMLA leave and retaliation. Honda demanded copies of his medical records, reasoning that if Weimer’s condition didn’t amount to a serious health condition under the FMLA, then he wasn’t entitled to the leave and couldn’t sue for interference and retaliation. It thought the medical records would show he didn’t have a serious health condition.

Weimer argued that Honda couldn’t challenge his leave entitlement after the fact, but should have asked for the second and third opinion earlier.

The court disagreed. It said an employer that has a good-faith belief that an employee was taking FMLA leave he wasn’t entitled to could challenge the underlying medical condition and entitlement later—even if it never asked for a second or third opinion. (Weimer v. Honda, No. 2:06-CV-844, SD OH, 2008)

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