(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 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]
