Sec.31-51qq-32. What may an employer do if it questions the adequacy of a medical certificate for leave taken because of an employee’s own serious health condition or the serious health condition of a family member?

(a) Clarification and authentication.

(1) For purposes of sections 31-51qq-1 to 31-51qq-52, inclusive, of the Regulations of Connecticut State Agencies, “authentication” means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed or authorized by the health care provider who signed the document; no additional medical information may be requested.

(2) For purposes of sections 31-51qq-1 to 31-51qq-52, inclusive, of the Regulations of Connecticut State Agencies, “clarification” means contacting the health care provider, with the employee’s permission, to understand the handwriting on the medical certification or to understand the meaning of a response.

(3) If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the employee's health care provider. However, the employer may contact the employee's health care provider for purposes of clarification or authentication of the medical certification (whether it is an initial certification or a recertification) after the employer has given the employee an opportunity to cure any deficiencies. The employer shall use a health care provider, a human resources professional, a leave administrator, or a management official to make such contact. The employee’s direct supervisor shall not contact the employee's health care provider under any circumstances. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the employee’s health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. It is the employee's responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary. The FMLA does not prevent the employer or a representative of the employer from having direct contact with the employee’s health care provider in order to follow the procedures for requesting medical information under the ADA, FEPA, workers’ compensation law or disability plan, subject to the provisions of subsections (c) and (d) of section 31-51qq-31 of the Regulations of Connecticut State Agencies.

(b) Second opinion. An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the Act. If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies. The employer may designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the employer. The employer may not regularly contract with or otherwise regularly use the services of the health care provider providing the second opinion, unless the employer is located in an area where access to health care is extremely limited, for example, a rural area where no more than one (1) or two (2) doctors practice in the relevant specialty in the vicinity.

(c) Third opinion. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The employer and employee shall designate or jointly approve the third health care provider. The employer and the employee shall each act in good faith to attempt to reach agreement on whom to select for the third opinion provider. If the employer does not attempt in good faith to reach agreement, the employer shall be bound by the first certification. If the employee does not attempt in good faith to reach agreement, the employee shall be bound by the second certification. For example, an employee who refuses to agree to see a doctor in the specialty in question may be failing to act in good faith. On the other hand, an employer that refuses to agree to any doctor on a list of specialists in the appropriate field provided by the employee and whom the employee has not previously consulted may be failing to act in good faith.

(d) Copies of opinions. The employer shall provide the employee with a copy of the second and third medical opinions, where applicable, upon request by the employee. The employer shall provide the requested copies not later than five (5) business days after such request, unless extenuating circumstances prevent such action.

(e) Travel expenses. If the employer requires the employee to obtain either a second or third opinion, the employer shall reimburse an employee or family member for any reasonable “out of pocket” travel expenses incurred to obtain the second and third medical opinions. The employer may not require the employee or family member to travel outside normal commuting distance for purposes of obtaining the second or third medical opinions except in very unusual circumstances.

(f) Medical certification abroad. In circumstances when the employee or a family member is visiting in another country, or a family member resides in another country, and a serious health condition develops, the employer shall accept a medical certification as well as second and third opinions from a health care provider who practices in that country. Where a certification by a foreign health care provider is in a language other than English, the employee shall provide the employer with a written translation of the certification upon request.

(Adopted effective March 9, 1999; Amended August 3, 2022)