Requesting a Doctor's Note for Each Intermittent FMLA Absence?

Intermittent leave under the Family Medical Leave Act (FMLA) can pose a significant (and often frustr​ating) administrative and tracking burden on an employer. Further, when attempting to ferret out abuse, an employer has a limited ability to question or control the use of intermittent leave.

For example, a recent case (which was an issue of first impression in the Ninth Circuit) reminds employers that information from an employee’s medical provider should only come in the form of a medical certification. Specifically, in Oak Harbor Freight Lines, Inc. v. Antti, 2014 U.S. Dist. LEXIS 20203 (D. Or. Feb. 19, 2014), the court held that a company’s policy of requesting a doctor’s note for each intermittent FMLA absence violated the FMLA because the policy directly conflicted with the FMLA’s explicit recertification procedure. The court explained that the policy was in effect treating each absence as a separate period of FMLA leave and essentially requiring employees to reestablish eligibility for each absence.

What was the employer’s policy?

In response to its belief that a few employees seemed to be disproportionately taking time off on Mondays and Fridays, or just before a holiday, the company implemented a policy which required employees taking intermittent FMLA leave to obtain a note from a medical provider for each absence. The company hoped that the note requirement would act as a deterrent to employees lying about FMLA use and would also ensure the company kept accurate records of FMLA use. When an employee was approved for intermittent medical leave, the company sent a letter to the employee containing the following language:

"In order for me to know when to apply FMLA to an absence, a medical note will be required from your provider for that absence. The note will need to indicate you were seen by a provider during the absence and how the absence relates to the FMLA qualifying condition. Without this information, I would be unable to apply FMLA to any specific absence."

The company required the medical provider’s note within 15 days of the absence. Further, the company would reimburse the employee for any applicable co-payment.

Why did the policy violate the FMLA?

The court held that the company had no statutory or regulatory authority to require its employees taking approved intermittent leave to obtain a doctor’s note for each absence. The court explained that the policy directly conflicted with the FMLA’s explicit recertification procedure because such a request was tantamount to requesting recertification for each absence. Specifically, although both the FMLA itself and its implementing regulations are silent on the issue, the statute and regulations show an intent to limit medical verification to certification and recertification as delineated. The court noted that neither the FMLA nor its regulations provide for any other means by which an employer can require documentation from an employee’s medical provider, explaining:

"[h]ad Congress, or the Department of Labor, desired to permit employers to demand such intermittent verifications, the statute or regulations would provide as much. Instead, the regulations provide that an employer can verify the absence-condition connection by means of recertification."

As such, the court found that the statutory scheme suggested Congress’ intention to explicitly control the means by which an employer may obtain information from an employee’s doctor.

How can an employer lawfully obtain medical information related to an employee’s FMLA leave?

The FMLA reflects a fairly rigid process to document an employee’s medical condition. Specifically, the employer may require the completion of a medical certification. The medical certification may require the dates of expected treatment, the medical necessity of intermittent leave, and the expected duration of the intermittent leave. 29 U.S.C § 2613. Further, if an employer disagrees with the initial medical certification, an employer may request second and third opinions, and require the employee to obtain a subsequent recertification on a reasonable basis. 29 U.S.C § 2613 (c), (d) and (e).

The FMLA regulations anticipate “reasonable basis” for recertification as “no more often than every 30 days and only in connection with an absence by the employee” unless an exception applies. 29 C.F.R. § 825.308(a). An employer may request recertification in less than 30 days only in the case of changed circumstances or when the employer doubts the continuing validity of the certification. 29 C.F.R.§ 825.308(c). The FMLA regulations also permit contact with a health care provider for authentication and clarification of a medical certification, but not to gather medical information. 29 C.F.R. § 825.307(a).

Tiffani L. McDonough is an attorney in the Labor Relations & Employment Law Department of Obermayer Rebmann Maxwell & Hippel LLP, where she represents employers on a national basis in all aspects of labor and employment law. © 2014, Obermayer Rebmann Maxwell & Hippel LLP. All rights reserved. Republished with permission. This article originally appeared in the firm's online publication HR Legalist.

Related SHRM Article:

• Doctor’s Note Requirement for Intermittent Leave Violated FMLA, SHRM Online Legal Issues, February 2014
• Can we require notes from physicians every time an employee misses work while taking FMLA leave intermittently?, SHRM HR Q&As, October 2013

​Quick Links:

• SHRM OnlineBenefits Topics & Strategy
• SHRM OnlineWellness Resource Page
• SHRM OnlineWorkplace Flexibility Resource Page