Focus on Revised FMLA Regulations: Can An Employer Request A Second Or Third Opinion Before the Opportunity To Cure?

Happy New Year!  We are closing in on the January 16, 2009 effective date of the Final Regulations, so I hope to cover a number of topics in the next few weeks. 
 
A client recently asked whether an employer must give an employee the opportunity to cure any deficiences in a medical certification pursuant to 29 C.F.R. Section 825.305(c) before the employer may seek a second or third opinion concerning the certification.  The Final Regulations do not address this issue.  According to the Final Regulations, an employee is required to provide a "complete and sufficient" certification to the employer if the employer's request otherwise complies with the applicable Final Regulations.  The employer shall advise an employee whenever the empoyer finds the certification incomplete or insufficient, and shall state in writing what additional information is needed to make the certification complete or sufficient.  A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed.  A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous or non-responsive.  The employer must provide the employee with seven calendar days (unless "not practicable under the particular circumstances despite the employee's good faith efforts") to cure any such deficiency.  See 29 C.F.R. Section 825.305(c). 
 
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 medical opinion, the employee is provisionally entitled to the benefits of the FMLA, including maintenance of group health benefits.  See 29 C.F.R. Section 825.307(b).  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 health care provider at the employer's expense.  The third opinion is final and binding.  See 29 C.F.R. Section 825.307(c).  Employers should refer to 29 C.F.R. Sections 825.307(b) and (c) concerning which health care providers may furnish a second or third opinion and, in the case of third opinions, the process for selecting the health care provider. 
 
Sections 825.305 and 825.307 of the Final Regulations are silent as to whether an employer must provide the employee with the 7-day opportunity to cure an insufficient or imcomplete certification before seeking a second opinion because the employer has reason to doubt the validity of the medical certification.  In many, if not most, cases, if an employer has reason to doubt the validity of the medical certification, the concern likely will arise from the fact that the initial medical certification is either incomplete or insufficient.  Given this, and given that an employer must provide the employee with an opportunity to cure if the certification is incomplete or insufficient, the best practice is to provide the opportunity to cure and then seek a second opinion if the employer still has concerns about the validity of the medical certification.  In addition, because the employer must pay for the second and third opinions, it would behoove the employer to attempt to resolve any issues with the certification through the 7-day opportunity to cure prior to expending monies on additional certifications. 
 
I suspect that we will see a Department of Labor opinion letter on this issue at some point. 
 
Please see my November 21, 2008 blog for a link to the full text of the Revised Regulations. 
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