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- Section Number: 825.307
- Section Name: What may an employer do if
it questions the adequacy of a medical certification?
(a) If an employee submits a
complete certification signed by the health care provider,
the employer may not request additional information
from the employee's health care provider. However, a
health care provider representing the employer may contact
the employee's health care provider, with the employee's
permission, for purposes of clarification and authenticity
of the medical certification.
(1) If an employee is on FMLA
leave running concurrently with a workers' compensation
absence, and the provisions of the workers' compensation
statute permit the employer or the employer's representative
to have direct contact with the employee's workers'
compensation health care provider, the employer may
follow the workers' compensation provisions.
(2) An employer who has reason
to doubt the validity of a medical certification may
require the employee to obtain a second opinion at the
employer's expense. Pending receipt of the second (or
third) medical opinion, the employee is provisionally
entitled to the benefits of the Act, including maintenance
of group health benefits. If the certifications do not
ultimately establish the employee's entitlement to FMLA
leave, the leave shall not be designated as FMLA leave
and may be treated as paid or unpaid leave under the
employer's established leave policies. The employer
is permitted to designate the health care provider to
furnish the second opinion, but the selected health
care provider may not be employed on a regular basis
by the employer. See also paragraphs (e) and (f) of
this section.
(b) The employer may not regularly
contract with or otherwise regularly utilize the services
of the health care provider furnishing the second opinion
unless the employer is located in an area where access
to health care is extremely limited (e.g., a rural area
where no more than one or two doctors practice in the
relevant specialty in the vicinity).
(c) If the opinions of the employee's
and the employer's designated health care providers
differ, the employer may require the employee to obtain
certification from a third health care provider, again
at the employer's expense. This third opinion shall
be final and binding. The third health care provider
must be designated or approved jointly by the employer
and the employee. The employer and the employee must
each act in good faith to attempt to reach agreement
on whom to select for the third opinion provider. If
the employer does not attempt in good faith to reach
agreement, the employer will be bound by the first certification.
If the employee does not attempt in good faith to reach
agreement, the employee will be bound by the second
certification. For example, an employee who refuses
to agree to see a doctor in the specialty in question
may be failing to act in good faith. On the other hand,
an employer that refuses to agree to any doctor on a
list of specialists in the appropriate field provided
by the employee and whom the employee has not previously
consulted may be failing to act in good faith.
(d) The employer is required
to provide the employee with a copy of the second and
third medical opinions, where applicable, upon request
by the employee. Requested copies are to be provided
within two business days unless extenuating circumstances
prevent such action.
(e) If the employer requires
the employee to obtain either a second or third opinion
the employer must reimburse an employee or family member
for any reasonable ``out of pocket'' travel expenses
incurred to obtain the second and third medical opinions.
The employer may not require the employee or family
member to travel outside normal commuting distance for
purposes of obtaining the second or third medical opinions
except in very unusual circumstances.
(f) In circumstances when the
employee or a family member is visiting in another country,
or a family member resides in another country, and a
serious health condition develops, the employer shall
accept a medical certification as well as second and
third opinions from a health care provider who practices
in that country. [60 FR 2237, Jan. 6, 1995; 60 FR 16383,
Mar. 30, 1995]
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