FMLA: Complete Certification: When and How To Get Second ...



FMLA: COMPLETE CERTIFICATION:

WHEN AND HOW TO GET SECOND OPINIONS

1. WHAT IS A COMPLETE CERTIFICATION

The Postal Service can require employees to support their requests for leave under the

FMLA with a health care provider's certification of their serious health condition. The

Department of Labor (DOL) has developed an optional form (WH-380) which satisfies FMLA certification requirements. The employee may use Form WH-380, or any other documentation, so long as it contains the same basic information as the WH-380.

Certification is complete when the employee not only supplies all the information requested, but the information provided is responsive, i.e., it contains enough detail and specificity to enable the supervisor to determine if FMLA leave is warranted. When certification is complete and establishes that the employee is entitled to FMLA, the supervisor must designate the absence as FMLA unless the conditions in sections 3, 4, or 5 below exist.

2. WHAT TO DO WHEN CERTIFICATION IS NOT COMPLETE

If the information submitted is not complete, it is imperative for the supervisor to (1) advise the employee where the certification is deficient and (2) ask the employee to obtain the necessary information. The employee must be given sufficient time to comply with this request, i.e., at least 15 days from the time of the request.

3. WHAT TO DO WHEN CERTIFICATION IS COMPLETE BUT

YOU QUESTION ITS AUTHENTICITY

When you have reason to doubt the authenticity of a certification, for example, when the document appears to have been altered, you should request that the medical unit or contract postal physician contact the employee's health care provider to verify the authenticity of the certification. You can do this by returning a copy of the suspect certification to the employee's health care provider so he/she can see it firsthand in order to verify or deny its authenticity. This inquiry is limited solely to verifying the authenticity of the medical documentation and cannot be used to obtain additional medical information. Note, however, that the regulations provide only for a second opinion as a means of verifying authenticity in the absence of employee consent to

contact his or her provider.

4. WHAT TO DO WHEN CERTIFICATION IS COMPLETE BUT

IT IS UNCLEAR WHETHER THE EMPLOYEE'S ABSENCE IS

ENTITLED TO FMLA PROTECTION

If you do not understand whether the certification establishes an FMLA protected absence, there are two options available. First, you can seek to clarify the certification.

Request the employee's permission to have the medical unit or contract physician contact the employee's health care provider to request clarification of the information contained in the document.

If clarification by the employee's health care provider does not resolve your concern(s) or if the employee denies you permission to contact his or her provider, you should obtain a second opinion.

For both second opinions and clarifications, employees will need to sign an authorization allowing their health care provider to disclose information directly to the Postal Service. Contact your field law office for assistance.

5. WHAT TO DO WHEN CERTIFICATION IS COMPLETE BUT

YOU HAVE REASON TO DOUBT THE VALIDITY OF THE

INFORMATION

A second opinion is also appropriate, without the intervening step of clarification, when you have reason to dispute the validity of the information contained in the certification. This can occur initially, when you first receive the certification, or at some subsequent time when circumstances cause you to doubt the validity of the initial certification.

Unless it is clear from the certification that all information was submitted and that the condition meets the requirements of a SHC, we advise supervisors to seriously consider obtaining second opinions in cases of chronic serious health conditions. This is because once you approve a request for intermittent leave for a chronic condition, the employee can take as much as 9 1/2 hours a week of protected absences in a leave year without running his or her FMLA entitlement. To ensure complete information therefore, a second opinion is a sound investment.

6. GETTING A SECOND OPINION

The second opinion is at the Postal Service's expense and it includes reasonable out-of-pocket travel expenses incurred to obtain the second opinion.* The time spent by the employee getting a second opinion is unpaid unless, of course, the employee is on sick or annual leave. Employees may use available paid leave if the appointment must be during their tour of duty. If an employee refuses to cooperate with the second opinion process, the employee loses the benefit of FMLA protected leave.

Employees are also entitled to copies of the second opinion when they request it. The copies should be provided to them within two business days of the request, absent extenuating circumstances. Employees are entitled to the protection of the FMLA pending receipt of the second opinion.

* Out-of-pocket expenses can also include other miscellaneous items such as copying costs for the medical documents.

A. Who Gives the Second Opinion

Contact the Postal Service medical unit or contract physician to get a list of health care providers in your geographic area who specialize in the medical condition in question. Wherever possible, use board-certified specialists. Health care providers employed by or regularly contracted with the Postal Service cannot be used for second opinions. Exceptions may be permissible in rural areas where access to specialists is extremely limited. Consult Labor Relations or the Law Department for additional advice in this regard. The employee or family member may not be required to travel outside normal commuting distance, except in very unusual circumstances.

B. What Forms Must Be Completed

Complete PS Form 7381, Requisition for Supplies, Services, or Equipment. Obtain appropriate approvals prior to sending the employee for the second opinion. Note in the justification section of the Form "The Family and Medical Leave Act allows the Postal Service to require a second opinion from a health care provider when it doubts the validity of the medical certification entitling the employee to a maximum of 12 workweeks of job-protected FMLA absence."

Employees must sign an authorization form allowing their health care provider to release and disclose medical information to the Postal Service. Contact your field law office for assistance.

C. What to Tell the Health Care Provider

A letter should be prepared for the Postal Service to send in advance to the second opinion provider. This letter should be from either the Postal Service's medical officer/contract physician or from Human Resources. It should advise the selected health care provider to bill the Postal Service for the cost of the second opinion, emphasizing that only an opinion of the serious health condition is requested. It would be helpful to attach a copy of DOL's Form WH-380 and request that it be completed. Advise the health care provider to submit the medical bill and results of his or her findings to your office. Provide the appropriate address or preferably, a self-addressed envelope.

The letter should also inform the health care provider of the essential functions of the employee's position, work schedule, attendance and work environment. If you have specific questions, regarding the serious health condition (for example, expected frequency and duration of intermittent absences) note so in this letter. Attach copies of the prior medical certification as well.

D. How to do Billing

Payment for the examination should follow your local buying authority procedures, i.e., impress funds, etc. (See ASM, subchapter 71). When you receive the bill, attach it to the approved PS Form 7381, and submit to the Finance Office or installation head, as appropriate, for payment. The employee should fill out PS Form 1164, Claim for Reimbursement for Expenditures on Official Business, to claim reimbursement for reasonable "out-of-pocket" travel expenses incurred to obtain the second opinion.

7. WHEN THE SECOND OPINION VALIDATES THE FIRST OPINION

If the second opinion establishes the validity of the first opinion, the employee is entitled to the FMLA protected absences as verified by the second opinion health care provider. The supervisor may then request subsequent recertifications of the employee's medical conditions as specified in 29 C.F.R. 825.308 (DOL regulations).

8. WHEN THE SECOND OPINION DIFFERS FROM THE FIRST OPINION

If the second opinion does not establish the employee's entitlement to FMLA, the leave shall not be designated as FMLA and may be treated as paid or unpaid leave under the Postal Service's established leave policies. The employee must be notified of the results of the second opinion and of the fact that the leave will not be designated as FMLA.

If the employee nonetheless believes FMLA leave is appropriate, or if the second opinion confirms the condition is FMLA protected but differs in the amount of leave predicted, the employee may wish to obtain a third opinion. Again, this is at Postal Service expense. Unlike second opinions, though, a health care provider employed by or regularly contracted with the Postal Service may be used for the third opinion. However, the third opinion health care provider must be jointly approved or designated by both the employer and employee. Normally, you should give the employee a list of three or four qualified specialists and ask the employee to choose one. Make the appointment and provide the health care provider with a letter similar to the second opinion letter. The employee is entitled to the protection of the FMLA pending the third opinion.

The third opinion is final and binding. Absence of good faith in this process by either party warrants resort to either the first or second opinion, depending on which party fails to cooperate. Billing and other information for the health care provider follow the same procedures as for the second opinion.

If the certifications do not ultimately establish the employee's entitlement to FMLA, time keeping records are to be corrected to reflect that the absence was not protected by FMLA. The absence may be treated as paid or unpaid leave and is subject to any related disciplinary actions under the Postal Service's established policy.

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