An employee who requests family leave for a serious illness can be asked to submit medical verification of the need for the leave. But what if you don’t believe the person is medically entitled to the leave? Can youseek a second opinion? A new ruling from a federal appeals courtconfirms that you have the right to a second and sometimes evena third opinion. And if the employee refuses to cooperate, theperson forfeits the right to family leave and can be disciplined or terminated.
Employee Submits Conflicting Physician Certifications
Alfredo Diaz, a Fort Wayne Foundry Corp. employee, took a month of family leave afterhis doctor certified he had bronchitis. When the leave was up,Diaz called work to say he was getting medical treatment in Mexico.The company received a note from a new physician, Dr. Llamas,stating Diaz suffered from gastrointestinal problems and neededsix more weeks off.
Fort Wayne was suspicious because the stomach problems seemed to be unrelated to the original bronchitis. Nevertheless, it notified Diaz in a letter thatit was extending his leave by two weeks. A few weeks later, Dr.Llamas sent a fax stating Diaz needed another month off.
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Employer Wants Worker Examined
To resolve the conflict between the doctors’ statements and determine when Diaz couldreturn to work, Fort Wayne sent a certified letter to Diaz athis home address instructing him to report for a medical examinationin eight days. The certified mail receipt was signed “AlfredoD.” However, Diaz never showed up and was fired.
Employee Files Lawsuit
Diaz sued, claiming the discharge violated the federal Family and Medi- cal LeaveAct (FMLA). Under FMLA, employers with 50 or more employees mustprovide eligible workers with up to 12 weeks of unpaidleave for, among other reasons, their own serious health condition.Diaz charged that Fort Wayne should have sent the exam notice to him in Mexico ratherthan to his home in the U.S. The company argued the notice toDiaz was appropriate and that he forfeited his right to familyleave by failing to show up for the examination.
Employer Has Right To Second Opinion
The Court of Appeal explained that an employer can require a second opinion when thereis reason to doubt the validity of a medical verification forfamily leave. According to the court, Fort Wayne had the rightto seek a second opinion because of the conflicting medical statements.
When Diaz failed to cooperate, he gave up the protections of the family leave laws.The court also pointed out that it was Diaz’s responsibility to give Fort Wayne his address in Mexico. Based on all of this, the court threw out thelawsuit.3
Four Steps To Take
Federal law allows employers to obtain a second opinion regarding an employee’s own healthcondition or that of a family member. However, you must followCalifornia’s stricter law which only permits you to challengea medical certification if it is provided for the employee’s ownserious health condition. Here’s how to handle situations whichcall for an additional medical opinion:
- Document the needfor a second opinion. Make sure you have a legitimate reasonfor questioning the first verification-such as, in the Fort Waynecase, conflicting statements from the employee’s doctors. If thesecond opinion differs from the original certification, you canrequire a third opinion that will be binding on both youand the employee.
- Choose a physician.You can send the employee to a health care provider that youdesignate or approve as long asyou don’t regularly use that provider.For a third medical opinion, you and the employee must agree onthe doctor. You pay for the second or third opinions, and youmust reimburse the employee for reasonable travel expenses. Also,you generally can’t require employees to travel outside theirnormal commute distance.
- Provide reasonablenotice. In the Fort Wayne case, the court pointed out that FMLAdoesn’t tell employers how to send notices. Thus, according tothe court, you should follow either your usual method for notifyingemployees, such as sending reasonable advance written notice bycertified mail to the last known address,or the notification method spelled out in >a union collective bargaining agreement, if you have one.
- Continue family leave.Until you receive the second or third opinion, you must continuethe employee’s family leave, including maintaining their healthbenefits. If the opinion confirms the employee wasn’t entitledto family leave, any time already taken won’t count as familyleave. Instead, you can treat it as paid or unpaidleave according to your policies, and require the employee toreturn to work or face termination.