The Essential Guide to Family & Medical Leave

168 | the essential guide to family and medical leave
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If the second opinion contradicts the first, proceed with caution. The
FMLA gives you the right to get a third opinion if the first and second
certifications differ (see “Third Opinions,” below). Some courts have said
that you must provide FMLA benefits unless you get this tie-breaking
third opinion; others have said that you can deny benefits in reliance on
the second opinion (although you might, of course, face a legal challenge
from the employee, claiming that the first opinion was correct and you
improperly denied FMLA protections). Based on this conflict, the safest
course of action is to go ahead with the third opinion; if you’re considering
denying FMLA benefits based on a second opinion, talk to an experienced
employment attorney.
Third Opinions
If the first and second certifications contradict each other, you may ask the
employee to get a third opinion, which will be binding on everyone. The
provider who gives the third opinion must be mutually agreeable to the
company and the employee, and both must act in good faith when choosing
the provider. (Once you reach an agreement on who will provide the third
opinion, put it in writing.) The employer must again pay the costs of this
process, as well as travel costs. As with the second opinion, you must give the
employee a copy, upon request, within two business days.
Recertifications
In some circumstances, you are allowed to ask an employee to provide a
recertification of a serious health condition. This process is intended to help
employers fight abuse by employees, particularly employees who take leave
periodically either because of a condition that occasionally requires time off
or because of a need for intermittent leave for medical appointments or other
treatment.