Best Ohio FMLA Attorney Answer: Can my employer make me see their doctor before granting my FMLA request? Can my employer require that my sick family member be seen by their doctor? What happens if my doctor and my employer’s doctor disagree?
Under the Family Medical Leave Act (“FMLA”) eligible employees can take up to twelve weeks off from work to handle their own serious medical needs, or for those of a family member. However, many employers are becoming more aggressive about preventing FMLA abuse by requiring employees to get a second opinion from a doctor of the employer’s choosing. Can they do that?
29 C.F.R § 825.307(b) specifically allows employers to require employees to get a second opinion from a doctor of the employer’s choosing when the employer has a reason to doubt the validity of a medical certification provided with a FMLA request – whether it is for the employees own health condition, or for the health condition of a family member. However, the employer is not allowed to request a second opinion when FML leave is requested to be with a newborn baby or upon adoption of a child.
I’m sure that you are wondering, but the doctor giving the second opinion cannot be someone the employer goes to on a regular basis. Thus, the employer cannot hire the same doctor over and over again, eliminating the risk that the doctor might have an incentive to give the employer the opinion it wants. Moreover, the employer must reimburse the employee or their family member for any travel expenses to the second doctor, and cannot require the employee or family member to travel outside normal commuting distance for the purposes of the second opinion.
As you might guess, sometimes the employee’s doctor and the employer’s doctor disagree. What happens then? 29 C.F.R § 825.307(c) provides for a “tie-breaker” opinion, or for the opinion of a third doctor. However, the employer and employee must jointly agree on a doctor to provide the third opinion. If the employer acts in bad faith in selecting a third doctor, it will be bound by the opinion of the employee’s first doctor. The opinion of the third doctor is final and binding. Employers must produce copies of the second doctor and third doctor’s opinions upon the employee’s request. The employer is also responsible for reimbursing the employee or their family member for travel cost associated with seeing the third doctor.
So, this process will likely take some time. What happens while this back and forth is going on? While waiting for the second or even third medical evaluation, the FMLA provides that the employee provisionally gets to be on protected leave.
If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is (216) 291-4744. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.
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