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The Employer Handbook Blog
The FMLA’s Second and Third Medical Opinion Process: A Rare Look at How It Works and What It Costs to Skip It
If you’ve never requested a second FMLA medical opinion, you’re not alone. Most employers haven’t. A Seventh Circuit case decided last month is a useful illustration of how that process works and why the details matter. This is the second post from that case — yesterday’s covered the FMLA falsification and transgender discrimination angles.
TL;DR: A bus operator applied for intermittent FMLA leave and submitted a medical certification from a chiropractor. The third-party administrator required a second opinion, which came back negative. When the process moved to a third opinion, the employee failed to cooperate. Under federal regulations, that made the second opinion binding. The administrator denied the leave application. The employee’s FMLA interference claim failed because he couldn’t show he was entitled to leave. This is a non-precedential Seventh Circuit opinion.
How the FMLA’s Three-Opinion Process Works
The FMLA’s medical certification process has three potential steps, each governed by federal regulation. Understanding how they work, and what happens when the process breaks down, is useful context for any employer managing FMLA leave.
The employee provides the first certification from a healthcare provider of their choosing. If the employer has reason to doubt the validity of that certification, it may require a second opinion at the employer’s expense. The employer selects the second opinion provider, with one constraint: that provider cannot be regularly employed by the employer. While the second opinion is pending, the employee is provisionally entitled to FMLA benefits.
If the first and second opinions conflict, the employer may require a third opinion, again at the employer’s expense. The third opinion provider must be jointly designated or approved by both the employer and the employee, and both must act in good faith to reach agreement. If the employer doesn’t act in good faith, it’s bound by the first certification; if the employee doesn’t act in good faith, they’re bound by the second. The third opinion, once rendered, is final and binding. The full process is set out at 29 C.F.R. § 825.307 and summarized in the DOL’s FMLA advisor.
What Happened in This Case
The employee applied for intermittent FMLA leave for back pain and submitted a certification from a chiropractor. The third-party administrator was already familiar with that chiropractor. He had submitted FMLA certifications for the employer’s employees with unusual frequency and often opined outside his specialty. Consistent with its general practice when receiving certifications from that provider, the administrator required a second opinion.
The second opinion came from an orthopedist, who concluded the employee was not qualified for FMLA leave. That conflicted with the first certification, so the administrator sent the employee a letter with instructions for scheduling a third opinion and also called him. The employee did not respond. Under 29 C.F.R. § 825.307(c), an employee who fails to attempt in good faith to reach agreement on a third provider is bound by the second certification. The administrator deferred to the second opinion and denied the leave application in December 2020.
The employee later argued the employer had obstructed the third opinion process. The court disagreed, finding the record showed the employer had contacted the employee by mail and phone and he had simply failed to respond in time. His FMLA interference claim failed because he couldn’t show he was entitled to leave in the first place.
Three Things This Case Illustrates About the FMLA Certification Process
The certification process has rules that cut both ways. Employers who don’t follow them lose their rights. Employees who don’t follow them lose theirs.
The right to require a second opinion has a specific trigger
An employer can require a second opinion only if it has “reason to doubt the validity” of the initial certification. That’s a low bar, but it’s not automatic. The administrator here had a documented basis: a pattern of certifications from a chiropractor who frequently opined outside his specialty. Employers and administrators should document the specific basis for requiring a second opinion, not just act on instinct.
The third opinion process is jointly controlled, and good faith goes both ways
The third opinion provider must be jointly designated or approved by both parties. Neither side can obstruct the process. If the employer does, it’s bound by the first certification; if the employee does, they’re bound by the second. Documenting the employer’s outreach efforts during the third opinion process is essential. If the employee later claims obstruction, the record needs to show what the employer did and when.
An employee who skips the third opinion process loses the right to challenge the second
The employee’s failure to respond to the administrator’s letter and call meant he was bound by the second opinion, the one that said he didn’t qualify. That made the interference claim impossible: he couldn’t show entitlement to leave because the binding certification said he wasn’t entitled. Employees who don’t engage in the third opinion process in good faith forfeit their ability to contest a denial.
The three-opinion process is designed to resolve genuine medical disagreements. When an employee opts out of it, the employer’s position becomes significantly stronger, and the record of outreach is what proves it.