Rules differ regarding second opinions on fitness‑for‑duty certifications

published in McAfee & Taft EmployerLINC | February 11, 2015

By Courtney Bru

Employers may require fitness-for-duty certifications in a variety of circumstances, including employees returning from leave under the Family and Medical Leave Act (FMLA) and determining the existence of disabilities or the need for reasonable accommodations under the Americans with Disabilities Act (ADA). The availability of a second opinion on a fitness-for-duty certification depends on which law applies.

Second opinions under the FMLA

medical-recordsWhen an employee returns from FMLA leave they may be required to provide a fitness-for-duty certification limited to the “serious health condition” for which their FMLA leave was taken. However, the employer may obtain a fitness-for-duty certification only if the employer provides notice of this requirement to the employee on the Form WH-382 Designation Notice. Form WH-382 provides:

You will be required to present a fitness-for-duty certificate to be restored to employment.  If such certification is not timely received, your return to work may be delayed until certification is provided.  A list of the essential functions of your position ___ is ___ is not attached.  If attached, the fitness-for-duty certification must address your ability to perform these functions.

Although it is optional for the employer to provide a job description or listing of essential duties at this time, if the employer provides this information, it can require that the fitness-for-duty certification specifically address the employee’s abilities to perform essential functions.

The employee must pay the cost of obtaining an FMLA fitness-for-duty certification, but gets to select the health care provider. The employer may delay or deny job restoration until the employee submits the certification from his or her own health care provider. The employer may contact the employee’s health care provider to authenticate the certification or to obtain clarification regarding the certification, but may not delay  returning the employee to work during this process.

FMLA regulations specifically provide that “[n]o second or third opinions on a fitness-for-duty certification may be required.” However, “[i]f an employee’s serious health conditions may also be a disability within the meaning of the ADA, the FMLA does not prevent the employer following the procedures for requesting medical information under the ADA.”

Second opinions under the ADA

An employee may be required to undergo a medical examination under the ADA, as long as it is job-related and consistent with business necessity.  An employee should be subjected to such an exam only if the requirement is imposed on all “similarly-situated employees,” such as those in the same occupation or having the same physical or mental condition.

Under the ADA, the employer must pay the expense of the exam, but may also select the health care provider, including their own health care provider.

Unlike the FMLA, neither the ADA nor its regulations specifically address second or third opinions. They are not expressly prohibited. An EEOC guidance suggests that they are allowed in certain circumstances.

If the employee’s medical information provides “insufficient documentation from his/her treating physician to substantiate either the existence of a disability or the need for a reasonable accommodation, the employer should explain the insufficiencies and allow a reasonable opportunity to provide missing or additional information.” Documentation is also “insufficient” if (1) the health care provider lacks expertise on the condition at issue, (2) it does not specify functional limitations that are due to the claimed disability, or (3) other factors indicate the information provided is not credible or is fraudulent.

The employer should first contact the employee’s health care provider to authenticate or seek clarification regarding a fitness-for-duty certification. An employer may also may consult the employee’s doctor – but only if the employee first consents.

If the employer continues to receive “insufficient” documentation from the employee, it may require a second opinion at its own expense, by a health care professional that it selects. The employer is not required to provide a reasonable accommodation until sufficient documentation is obtained.