May Employees Be Required To Provide A Doctor’s Note For Each Intermittent FMLA Absence?

by Ruth Horvatich
(402) 341-3070

The scenario is one that happens far too often. An employee obtains a medical certification pursuant to the Family and Medical Leave Act (FMLA) indicating that the employee suffers from a serious health condition that can flare up at any time causing the employee to miss work a few times a month. Conveniently, the flare ups seem to always occur on Fridays and Mondays and on those rare 70 degree days in February in the Midwest. In order to prevent FMLA abuse, an employer comes up with a fool-proof plan: requiring employees to provide a doctor’s note for each of their intermittent FMLA absences. But, is this plan lawful under the FMLA? Although the regulations are silent on this issue, the courts have answered no—employers may not require a doctor’s note for each intermittent FMLA absence.

In Oak Harbor Freight Lines, Inc. v. Antti, the United States District Court in Oregon held that an employer’s requirement that employees on FMLA-approved intermittent leave provide a doctor’s note for each absence was unlawful as it was tantamount to requesting medical certification for each absence. The district court found that although silent on the specific issue, the FMLA statute and regulations show an intent to limit medical verification to certification and recertification every 30 days and that employers may only request recertification in fewer than 30 days in the case of changed circumstances or when the employer doubts the continuing validity of the certification. Additionally, the district court noted that neither the FMLA nor its regulations provide for any other means by which an employer may require documentation from an employee’s medical provider. Although this decision has limited precedential value, it is instructive and may be followed by other jurisdictions when faced with this question as there are very few cases specifically on point.

So, if employers cannot require a doctor’s note for each intermittent FMLA absence, what can employers do to prevent FMLA abuse when it comes to intermittent leave? Here are a few pointers:

• Request recertification. As the district court in the case discussed above pointed out, the FMLA regulations allow employers to request recertification in certain situations. For one, employers may request recertification if the circumstances under the original certification have changed significantly—such as when an employee’s absences exceed the amount provided for under the original certification. Recertification can also be requested if the employer possesses evidence that casts doubt as to the stated reason for an absence—such as when an employee consistently takes intermittent leave on Fridays and Mondays to extend the weekend.

• When requesting recertification, provide the doctor information on the questioned absences. The regulations allow employers to provide information to the health care provider about the employee’s absence pattern and to ask if such absences are consistent with the health condition. This is an important tool to provide the doctor with the big picture on why the recertification is requested.

• Require the employee to follow your notice and call-in procedures. The FMLA regulations provide that an employee is required to comply with the “employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” In other words, the employee must follow all normal call-in procedures, such as calling in prior to the work shift to report an absence. As a result, attendance points may be assessed if the employee fails to comply with the call-in procedure even though the absence itself may not be counted.

Intermittent leave is one of the most complicated areas under FMLA law. Before seeking recertification or issuing discipline to an employee relating to FMLA leave, it is a good idea to talk to your legal counsel.

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