Legal Question in Medical Leave in Ohio

Someone to talk to!

My husband has FMLA for his mother and now his company is wanting to get her records from her current doctor and also send her to ''their'' doctor for a second opinion. Can they do that?

Asked on 9/19/07, 2:17 pm

2 Answers from Attorneys

Gregory Gordillo Gordillo & Gordillo LLC

Re: Someone to talk to!

Under the FMLA, an employee must be using available medical leave because of a serious health condition. An employer has a right to verify whether the individual who is sick or injured actually has a serious health condition.

The right, however, is limited. On one hand, an employer does not have a right to all of a patient's medical records. On the other hand, an employer has the right to have the patient's doctor answer certain questions that are designed only to demonstrate that the patient has a serious health condition. Although the employer is not obligated to use forms provided by the United States Department of Labor to ask the doctor permissible questions, such a form is available.

If the doctor's answers do not satisfy the employer that the patient has a serious health condition, then the employer can request a second opinion from another doctor chosen by the employer. If after the second opinion is provided, the employee is not satisfied with the opinion, then the employee is also entitled to obtain a third opinion.

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Answered on 9/19/07, 4:38 pm

James R. Becker, Jr. Becker Law Firm

Re: Someone to talk to!

You may need to get an attorney involved to help out with this situation. As I understand the FMLA, the employer's right to information exists, but it is not unfettered. I believe that all the employer can do is request a medical certification of the serious health condition. I understand this to be more limited than a review of medical records.

After they have the certification, they can (at their own expense) get a second opinion as to the certification.

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Answered on 9/19/07, 10:01 pm

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