FMLA 2nd Opinion

Prairie

An employee requested FMLA, and provided a Medical Certification Statement saying she is unable to perform work of any kind. The FMLA was officially granted within two days. Can we now turn around and require her to see another Dr. for a 2nd opinion?

Whatever

Why do you now want to get another opinion? Has something changed since you granted the FMLA? Why is this ee out and how long?

Prairie

The Department Head decided that she may not be totally honest about her back pain. She will be out for 6-8 weeks. The Doctor said she cannot sit for more than 10 minutes, therefore she cannot do her job.

Whatever

Based on this information, I would follow-up in 30 days and get recertification. Once the information is received, you can send ee for a second medical opinion. As an aside, I listen when Supervisor's tell me an ee may be less than honest, I also make sure I know how the supervisor came to that conclusion.

LarryC

Once granted, I would wait the thirty days and then ask for recertification. THEN if you don't agree, send her in for a second opinion. See the "who's her doctor" thread for the specifics on the differnet opinions.

Prairie

Thanks for your input. 30 days sounds like a good plan!

marc

If something significant changed, you can request recertification immediately.

National Guard

You can require a second opinion but remember, you can't send her to one of your doctors. It has to be an independent third party doctor. Try looking up second opinions on the forum.

LarryC

[font size="1" color="#FF0000"]LAST EDITED ON 09-15-05 AT 03:33PM (CST)[/font][br][br]The second opinion can, indeed, come from a doctor of the employer's choosing. The third opinion must be from a doctor mutually agreed upon between the employer and the employee.

marc

Larry is correct.

LivindonSouth

You would not be wise to base a decision to get a second opinion on a 'Johnny come Lately' remark from another employee. The regs are very clear about conditions under which you may require recertification. The doubts of a supervisor, following approval, is not one of them.

Prairie

Thanks for all of your input. We have decided to wait for the 30 day recert. before going ahead (or not) with a 2nd opinion. I talked to her supervisor - he's convinced she's using this to use up her benefit hours and have time to find another job. The report from her MRI indicates she has reason to have pain. As far as I'm concerned, she has the benefit hours coming - if she gets another job, we'd have to pay out anyway. If she doesn't get another job, she will have nothing left for future time off.

System

National Guard's reminder is pertaining to a doctor or group of doctors with whom your company has a contract. For example, if you do pre-employment drug screening and physicals through a provider who has a contract with your company, you cannot use that doctor or facility for your second opinion.

Of course the company has a right to choose a doctor for a second opinion, it just cannot be with a contracted facility, thus appearing as a 'conflict.'

LivindonSouth

This is an interesting read on the regulations. The regs do state in several places 'a company doctor'. Although we do routinely refer candidates to a specific clinic (part of a chain of them) for pre-employment physicals, comp, etc; we DO NOT have a contract with anybody. I'm not sure what 'a company doctor' is or by whose definition we are expected to go.

marc

This interpretation gave me pause also. I don't remember anything specifically excluding any Dr the company might already be using. Isn't it similar to the employee using his regular physician?

If I have contracted with any medical provider for service, why could I not use them? These service might include physicals, drug screenings, hearing tests, and FMLA second opinions. I might be getting a volume discount - why would the FMLA preclude me from using any licensed provider?

Not allowing this would mean that the licensing board and the medical providers ethics would be called in question for no reason other than an ongoing relationship. Medical providers should provide the same service regardless of who is paying - isn't that the basis of health insurance to start with?

System

"I don't remember anything specifically excluding any Dr the company might already be using. Isn't it similar to the employee using his regular physician?"

The 'contract' implies a certain level of control of the company over the provider. I agree with you that it's similar to the employee using his regular physician. Apparently the "Act" believes a compromise is more likely to occur with the employer. . . and we all know a doctor would never embellish a report on the employee's condition.

National Guard

I found it. 29CFR 825.307

An employer may require ....second opinion at the employer's expense. ....The employer is permitted to designate the health care provider, but the selected provider may not be employed on a regular basis by the employer. THE EMPLOYER MAY NOT REGULARLY CONTRACT WITH OR OTHERWISE REGULARLY UTILIZE THE SERVICES OF THE HEALTH CARE PROVIDER FURNISHING THE SECOND OPINION.....

It goes on to say that if the first and second doctor's opinion differ then a third dr's opinion is binding and the employer and employee have to agree on which doctor to use for the third opinion. The employer can not make the employee go to a third dr of the employers choice!

[url]www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.307.htm[/url]

LarryC

I would say that if there is no contract, you can use that doctor, even if he regularly does your pre-employment physicals. Given the opportunity, I would do so.

National Guard

[font size="1" color="#FF0000"]LAST EDITED ON 09-16-05 AT 02:27PM (CST)[/font][br][br]I don't get that from reading it. It says the employer can not usa a doctor that they already use on a regular basis. "employer may not reularly contract with or otherwise regularly utilize the services of the health care provider" They are not talking about a written contract. They are using contract as a verb.


I have to go now-off to watch my daughter play field hockey. Be back on Monday, Have a great weekend.

TN HR

I tend to agree with NG. I would also wait 30 days before I would ask for re-certification. Only then would I send for 2nd opinion.