One basis for requesting leave under the Family and Medical Leave Act (FMLA) is the employee’s own “serious health condition” that renders them unable to perform the functions of the job.  When requesting leave under the Family and Medical Leave Act due to a “serious health condition”, the employee must tender to the employer a medical certification of the condition.

Some employers have found abuse of this procedure by employees, especially through the use of primary care physicians.  If the employer has “reason to doubt the validity of a medical certification”, the employer can request that the employee obtain a second medical opinion, at employer expense.  The employer can choose the health care provider rendering the second opinion, but can not regularly contract with, or use the services of that health care provider. 

The employer may not contact the employee’s health care provider, but the employer’s retained provider chosen to render the second opinion may make contact for limited purposes.  

If the second opinion conflicts with the opinion of the employee’s health care provider, a third provider jointly selected by the employer and employee will render an opinion that is final and binding.  The employer is responsible for the employee’s costs of the third opinion (travel, etc.).  While the above review is on-going, the employee shall have provisional FMLA leave.

If an employer decides not to challenge the medical opinion, or the result of the above procedure is confirmation of a serious medical condition supporting the basis for FMLA leave, an employer can request re-certification no more often than every thirty (30) days unless there is a significant change in circumstances, or the employer receives information to cast doubt on the certification.