(a) Clarification and authentication. If an employee submits a
complete and sufficient certification signed by the health care
provider, the employer may not request additional information from the
health care provider. However, the employer may contact the health care
provider for purposes of clarification and authentication of the
medical certification (whether initial certification or
recertification) after the employer has given the employee an
opportunity to cure any deficiencies as set forth in Sec. 825.305(c).
To make such contact, the employer must use a health care provider, a
human resources professional, a leave administrator, or a management
official. Under no circumstances, however, may the employee's direct
supervisor contact the employee's health care provider. For purposes of
these regulations, "authentication" means providing the health care
provider with a copy of the certification and requesting verification
that the information contained on the certification form was completed
and/or authorized by the health care provider who signed the document;
no additional medical information may be requested. "Clarification"
means contacting the health care provider to understand the handwriting
on the medical certification or to understand the meaning of a
response. Employers may not ask health care providers for additional
information beyond that required by the certification form. The
requirements of the Health Insurance Portability and Accountability Act
("HIPAA") Privacy Rule (see 45 CFR parts 160 and 164), which governs
the privacy of individually-identifiable health information created or
held by HIPAA-covered entities, must be satisfied when individually-
identifiable health information of an employee is shared with an
employer by a HIPAA-covered health care provider. If an employee
chooses not to provide the employer with authorization allowing the
employer to clarify the certification with the health care provider,
and does not otherwise clarify the certification, the employer may deny
the taking of FMLA leave if the certification is unclear. See Sec.
825.305(d). It is the employee's responsibility to provide the employer
with a complete and sufficient certification and to clarify the
certification if necessary.
(b) Second opinion. (1) 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. In addition, the consequences
set forth in Sec. 825.305(d) will apply if the employee or the
employee's family member fails to authorize his or her health care
provider to release all relevant medical information pertaining to the
serious health condition at issue if requested by the health care
provider designated to provide a second opinion in order to render a
sufficient and complete second opinion.
(2) 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. 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) Third opinion. 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. In addition, the consequences set forth
in Sec. 825.305(d) will apply if the employee or the employee's family
member fails to authorize his or her health care provider to release
all relevant medical information pertaining to the serious health
condition at issue if requested by the health care provider designated
to provide a third opinion in order to render a sufficient and complete
third opinion.
(d) Copies of opinions. 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 five business days unless extenuating circumstances
prevent such action.
(e) Travel expenses. 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) Medical certification abroad. In circumstances in which 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. Where a certification by a foreign health care provider is in
a language other than English, the employee must provide the employer
with a written translation of the certification upon request.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68102, Nov. 17, 2008]
