NOVA Legal Beat: Do I Have to Get a Second Opinion to Take Medical Leave?

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. I have pneumonia. I requested FMLA leave and submitted medical documentation from my doctor describing my condition. My employer now wants me to get another doctor’s opinion. Should I go through with it?

A. Employees suffering from a serious health condition that impairs their ability to do their jobs are allowed to take up to 12 workweeks of unpaid leave, or paid leave under certain circumstances, so long as they as they have worked at least 1,250 hours for the employer over the past 12 months. For an illness to qualify as a serious health condition, it must result in inpatient care or the “continuing treatment by a health care provider,” federal regulation states.

Pneumonia is generally understood to be an FMLA-covered illness and was even listed as an example of a serious health condition in the Senate report for the act, the 4th U.S. Circuit Court of Appeals noted in Miller v. AT&T (2001).

Employers are allowed the require employees to provide medical documentation “to substantiate that the leave is due to the serious health condition of the employee,” the regulation states. However, one doctor’s diagnosis of pneumonia does not make FMLA leave automatic.

When the validity of the medical certification provided by the employee is in doubt, the employer can require him or her to get a second opinion. The employer can select the physician who would provide the second opinion. When the first and second medical opinions differ, the employer could require the employee to get a third opinion from a health care provider on whom they jointly agreed. The third opinion is “final and binding,” the regulation states. The employer must foot the bill for the second and third opinions and compensate the employee for out-of-pocket travel expenses.

Employers generally should not wait too long before requesting a second opinion. The FMLA “does not suggest that an employer must pursue these [subsequent opinion] procedures or be forever foreclosed from challenging whether an employee suffered from a serious health condition,” the 4th U.S. Circuit Court of Appeals said in Rhoads v. Federal Deposit Insurance Corp (2001).

The 4th Circuit, however, did point out there are “potential pitfalls for an employer who chooses not to pursue a second opinion.” Namely, employers who wait months or years to challenge a physician’s contemporaneous notes may have difficulty proving that there was a “genuine issue of material fact” as to whether the employee who went on FMLA leave was actually incapable of performing his or her job because of a serious health condition.

Employees who believe they have been improperly denied FMLA leave should immediately consult with an experienced employment law attorney. Employers, too, should consult with an experienced employment law attorney to determine whether an employee is eligible for FMLA leave.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com.