[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.307]



[Page 782-783]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

 Subpart C_How do Employees Learn of Their FMLA Rights and Obligations, 

            and What Can an Employer Require of an Employee?

 

Sec.  825.307  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



[[Page 783]]



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]