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A Better Partnership


Oct 2009
October 20, 2009

HR Focus - Fall 2009

I Was Wondering . . .

Q: When can we request a second opinion in an FMLA case?

A: If an employer requires an employee to provide a health care provider certification as a condition to FMLA leave, but has reason to doubt the certification, the employer can require a "second opinion" from another health care provider. The employer selects the "second opinion provider," but can't use a provider with whom it "regularly" does business. If the second opinion disagrees with the first, the employer can require a third opinion from a health care provider selected by the providers who gave the first two opinions. The third opinion will control. FMLA Regulation 307.

Unfortunately, the process is different for a "recertification," defined as any health care provider certification after the first certification for that "serious health condition." Regulation 308 says that second and third opinions may not be required for a recertification. However, Regulation 305(e) allows an employer to require a new "certification" (rather than "recertification") once each year, and second and third opinions are allowed in that situation.

Keep in mind that even though you may not be able to require a second opinion under the FMLA rules, you can still require an independent medical examination if the employee is seeking disability or workers' compensation benefits, or if there is serious doubt about the employee's ability to perform the job safely.

Q: May an employer check with the doctor who issues a "sick slip" for an employee, to verify that the slip was actually issued by the doctor's office?

A: Unless the slip was issued as a "health care provider certification" under the FMLA, an employer is free to check with the doctor's office. If the slip was issued as an FMLA health care provider certification, then the FMLA regulations apply. Under the new FMLA regulations, the employer's "health care provider, human resources professional, leave administrator or management official" (but not the employee's direct supervisor) may contact the employee's health care provider to seek clarification and authentication of an incomplete or insufficient certification or recertification. Authentication under the regulations 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 handwriting or the meaning of a response.

'I Was Wondering . . .' gives readers an opportunity to ask questions of our HR attorneys. Not all questions will be answered publicly. To submit a question, please send it by e-mail to Sharon Sprague at

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We would like to congratulate Heidi Lyon who has been recognized by Michigan Lawyers Weekly as one of its 20 Up & Coming Lawyers for 2009.

Heidi was chosen from hundreds of exceptional young attorneys in Michigan for her work in employee benefits. Since joining us in March 2008, she has had the opportunity to work with some of Michigan’s largest employers during some of the toughest economic times our state has faced. Her expertise has earned her a seat on the IRS Great Lakes Tax-Exempt and Governmental Entities Council, an invitation-only group of select practitioners who meet with IRS and DOL officials to discuss the latest EB issues. She was also recently recognized as a Rising Star by Michigan Super Lawyers.

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2010 HR Seminar

Mark Your Calendar

March 23, 2010/DeVos Place

Work is under way on our HR seminar.

We’re packing both the morning and afternoon sessions
with valuable information for HR professionals.

As always, we'll work in some fun,
entertaining programs and make it worth your time.
We will also be adding "Ask the Lawyer" booths
to allow for some additional one-on-one time
with the presenters.

See what folks said about last year's program:

"Another excellent seminar filled with relevant,
knowledge-rich material, highly useful."

"Worth spending a full day away from the office."

"Excellent topics, great speakers,
appreciated humor in the presentations."

"Very informative. Thank you for having this. I wouldn't miss it."

"Very informative – one of the best seminars I've attended."

Mark your calendar and plan to attend.

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