The outcome of a new Family Medical Leave Act (FMLA) lawsuit offers up a valuable lesson for employers.
The FMLA allows employers to request second opinions when they have concerns about an employee’s medical certification. But companies that are going to do that must be prepared to ask for a third cert. 
When one employer failed to do that recently, it was found guilty of interfering with a worker’s right to FMLA leave.
As attorney Francine Breckenridge explains at the insightful The Employment Law Blog of the firm Strasburger & Price, LLP, employers cannot use a second opinion alone to reject a workers’ FMLA leave request.
No ‘tie breaker’
In the lawsuit, which Breckenridge breaks down, a worker began experiencing severe headaches after receiving warnings from her supervisor.
The employee’s doctor certified that she had a “serious health condition” that qualified her for FMLA leave.
Her employer then requested a second, independent assessment, which concluded no serious health condition existed that would entitle her to FMLA leave.
The ensuing dispute ended in her termination. She then sued, claiming her employer interfered with her FMLA rights.
Result: A Minnesota court sided with the worker. In its decision, the court explained that in cases like this the FMLA requires employers to get a third “tie breaker” opinion, which the employer failed to do.
In addition, Breckenridge explains that employers are also required to pay for the second and third medical opinions — and the medical providers rendering the opinions cannot be connected to the employers.
Source: “Employer flagged for FMLA interference,” Francine W. Breckenridge, The Employment Law Blog, 6/17/11.
