A Scheduling Letter Just Decided His Entire Leave Case

“I did everything my doctor told me to do.  I still lost my leave.”

That is what it feels like from the employee’s side when the second-opinion process goes wrong.  Here is what actually happened in a real case, Brown v.  Chicago Transit Authority.

An employee’s own doctor certified his need for FMLA leave.  His employer, doubting the certification, sent him to a second doctor, an orthopedist, who reached the opposite conclusion.  Under the federal FMLA regulations, that conflict triggers a right to a tie-breaking third opinion, one jointly selected by the employer and the employee, and both sides are required to act in good faith to get there.  The employee never responded to the letter and the calls asking him to schedule it.

Silence.

Under 29 C.F.R. § 825.307(c), an employee who does not cooperate in good faith with the third-opinion process is bound by the second opinion, the one that said no leave.  The court agreed with the employer and dismissed the employee’s claims.

In California, CFRA does not allow for second or third opinions. CFRA covers employers in California with as few as five employees. 

Do not let a scheduling letter decide your case for you.  Contact Michael Trust Law, APC for a no-charge initial consultation.  The facts determine whether you have a claim — and how much of a conversation that takes.

This post shares general information based on common patterns I see in California workplaces.  It is not legal advice, does not create an attorney-client relationship, and outcomes depend on specific facts — no lawyer can guarantee a result.  Past results do not guarantee or predict future outcomes.  AI may have been used to create this post.  All content reviewed by a CA attorney before publication.