FMLA-48 — Health care provider employed by the employer for 2nd opinions

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

October 19, 1994 FMLA-48

Dear
Name*,

Thank you for your letter of August 26, 1994, addressed to Secretary Robert Reich, about the Family and
Medical Leave Act of 1993 (FMLA). Your letter has been referred to the Wage and Hour Division of the
U.S. Department of Labor for reply as this office has primary administration and enforcement
responsibilities under FMLA for all private, state and local government employees, and some Federal
employees.

You are specifically concerned about § 103(c)(2) of FMLA which contains a statutory prohibition against
an employer obtaining a second medical opinion from a health care provider employed on a regular basis
by the employer. You request the Department to grant an exception to this statutory prohibition for faculty
medical doctors employed by the
Name*.

First we note that FMLA does not in any way prohibit or affect the practice where University faculty
members are the regular physicians of employees of the University. However, the statute grants no
authority to the Department of Labor to waive or otherwise modify the statutory provisions of §103(c)(2),
and thus we are unable to grant your request to exempt faculty medical doctors of the University
Name*
from the statutory limitations specified in §103(c)(2) of FMLA. This limitation is intended to protect an
employee whose original medical certificate has been challenged by the employer and to ensure an
unbiased second medical opinion from the employer designated physician. If the second medical opinion
differs from the original medical opinion, the health care provider to furnish the third medical opinion—
which will be final and binding on both parties—is not subject to the prohibition against using a health
care provider regularly employed by the employer but must be approved jointly by the employee and
employer.

We appreciate your concerns about FMLA. If you have any questions or require further assistance,
please do not hesitate to contact me.

Sincerely,

Daniel F. Sweeney
Deputy Assistant Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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