Both the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) often apply to employees who are seriously ill or injured. When this happens, employers may be required to grant leave and to accommodate the employee under both the FMLA and the ADA. This article series examines similarities and differences between the FMLA and ADA.
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Today’s article addresses independent medical examinations under both laws: Under what circumstances are they permissible?
ADA
An employer may require an individual to go to an appropriate healthcare professional of the employer’s choice if the individual provides insufficient information from his or her treating physician (or other healthcare professional) to substantiate that he or she has an ADA-covered disability and needs a reasonable accommodation. An independent medical examination conducted at the employer’s request must be paid for by the employer.
According to the Equal Employment Opportunity Commission’s (EEOC) guidelines on reasonable accommodation, the employer should explain why the documentation is insufficient and allow the individual an opportunity to provide the missing information in a timely manner.
Employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the healthcare or vocational professional.
FMLA
When the employer has reason to doubt the validity of the original certification, the employer is allowed to require a second opinion from a healthcare provider chosen by the employer. This healthcare provider may not be someone employed on a regular basis by the employer.
Employers may require the employee to obtain a third opinion when the second opinion differs from the first. The healthcare provider for the third opinion is allowed to be someone designated or approved by the employer, as long as the employee consents to the designated provider. This third opinion is considered to be final and binding on both employer and employee.
Second-and third-opinion exams are conducted at the employer’s expense and can be requested whether the patient is the employee or a family member. Note that recertifications are not permitted for servicemember caregiver leave.
Next week: Disqualifying events under both laws