EE refusing second opinion

HRinGA

Have an EE out for panic attacks and sleep apnea. Cert.ppwk is vague at best. It simply states "ee cannot work when he has an episode." Well, how long does an episode last? What constitutes an episode?
Even when the doctor has released him to return to work, he states he cannot. There is a disconnect b/t the doctor and employee. So we stepped in and requested a second opinion. EE is very resistant, doesn't want to go, etc.
What are our options if he refuses? He has been out for almost 5 weeks with no return to work in site. We've had a really hard time with this one.

joannie

If I understand the FMLA requirements you can deny or withdraw FML to an employee who refused to get a second opinion.

I would be sure to request the second opinion in writing. You will need to tell the employee what the consequences will be for failing to provide the second opinion and give the ee a reasonable opportunity to furnish the second opinion.

mbeam

I would follow with disciplinary action since you have a dr's return to work and your employee is not cooperating by (a) returning to work or (b) getting a second opinion

hrdilemma

I would not only put it in writing, but I would send it Certified Mail Return Reciept Requested to be sure to have documentation the EE received your written request.

stilldazed

Your case really sounds like an intermittent FMLA situation and not a continuous one. If you are consistent in requesting medical statements on all intermittent cases, have done so in writing, and have requested one in writing with this situation, you can deny FMLA for absences that are not covered by medical certification.

While your questioning the definition of episode on the stmt you have, I would think that the definition is fairly clear. Episode is intermittent occurances with periods of wellness in between. Episodic is not continuous. Your employee is taking continuous leave without medical certification to support the need for absence (in my humble opinion).

I would (and we do in our organization) request clarification from the employee on when the episodes occur, count the applicable absences for FMLA and discipline the others that can't be supported. These situations do get a little messy, but the employee is probably waiting for you to push the point. Require the employee to at least show up for work on the scheduled work days and allow the worker to go home if/when a "episode" occurs. If an episode does not occur, expect the employee to work the shift as scheduled.

An alternative is to use the DOL medical questionnaire in an attempt to get clarification from the doctor. Attached a job description with it and see if the physician will identify tasks that may be contributing to the episodes. Another alternative is to let the 12 weeks elapse. At the end of 12 weeks, the employee's protection is gone, you've documented your files, and you can fill the position with another candidate.

Best wishes.