Managing intermittent leave under the Family and Medical Leave Act (FMLA) presents unique challenges for employers. It can be administratively complex to track and, at times, frustrating when employers suspect abuse. A common question that arises is whether employers can request a Doctor Note each time an employee takes intermittent FMLA leave. The answer, as clarified by legal precedent, is generally no. This article delves into why requesting a doctor’s note for every absence related to intermittent FMLA leave is not only impractical but also legally problematic under the FMLA.
The Legal Boundary: Why Blanket Doctor’s Note Policies Violate FMLA
A pivotal case, Oak Harbor Freight Lines, Inc. v. Antti, brought this issue into sharp focus within the Ninth Circuit and serves as a crucial reminder for employers nationwide. The court in this case ruled against an employer’s policy that mandated a doctor’s note for each instance of intermittent FMLA leave. The core of the court’s decision rested on the fact that such a policy overstepped the boundaries of the FMLA’s explicit recertification procedures. By requiring a doctor note for every absence, the employer was effectively treating each absence as a new FMLA leave event, forcing employees to repeatedly justify their eligibility, which is not in line with FMLA regulations.
Decoding the Employer’s Policy in Oak Harbor Freight Lines
Driven by concerns about potential misuse of intermittent FMLA leave, particularly around weekends and holidays, Oak Harbor Freight Lines implemented a policy requiring employees on intermittent FMLA to furnish a medical note for each absence. The company believed this measure would deter FMLA abuse and improve absence tracking. The communication to employees approved for intermittent leave explicitly stated:
“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.”
This policy stipulated that the doctor’s note had to be provided within 15 days of the absence, and the company offered to reimburse any co-payment associated with obtaining these notes.
The FMLA Conflict: Why the Policy Was Deemed Unlawful
The court unequivocally determined that Oak Harbor Freight Lines’ policy was not authorized by FMLA statutes or regulations. The policy’s flaw was its direct contradiction with the FMLA’s clearly defined recertification process. Requiring a doctor note for every absence was seen as equivalent to demanding recertification for each instance of leave.
The court emphasized that while the FMLA and its regulations don’t explicitly address the issue of doctor’s notes for each absence, the legislative intent is clear: medical verification is limited to initial certification and periodic recertification as specifically outlined in the Act. The court elaborated:
“[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.”
This legal interpretation underscores that Congress intended to strictly control how employers can seek medical information from employees concerning FMLA leave, limiting it to the mechanisms of certification and recertification.
Navigating FMLA Medical Verification Lawfully
The FMLA provides a structured framework for employers to obtain necessary medical information to support an employee’s leave request. This framework primarily revolves around medical certification.
Initial Medical Certification
Under FMLA, employers are permitted to request that employees complete a medical certification form. This form can legally ask for crucial details such as:
- Dates of expected treatment.
- The medical necessity for intermittent leave.
- The anticipated duration of the intermittent leave requirement.
This initial medical certification (29 U.S.C § 2613) provides the foundational medical documentation for the FMLA leave.
Recertification: When and How Often?
If an employer has doubts about the ongoing need for FMLA leave, or if circumstances change, recertification is the appropriate legal avenue. However, FMLA regulations strictly govern how often recertification can be requested.
Generally, an employer can request recertification no more frequently than every 30 days and only in connection with an employee’s absence, unless specific exceptions apply (29 C.F.R. § 825.308(a)). Recertification can be requested in under 30 days if there’s a significant change in circumstances or if the employer questions the continued validity of the original certification (29 C.F.R.§ 825.308(c)).
Second and Third Medical Opinions
Should an employer dispute the initial medical certification’s findings, the FMLA allows for further verification through second and third medical opinions (29 U.S.C § 2613 (c), (d) and (e)). This process provides a mechanism for employers to seek additional medical assessments if they have reason to doubt the initial certification’s accuracy or completeness.
Authentication and Clarification, Not Additional Medical Information
FMLA regulations also permit employers to contact the healthcare provider to authenticate or clarify the medical certification (29 C.F.R. § 825.307(a).). It’s crucial to note that this contact is strictly for verifying the certification’s legitimacy and understanding the medical information provided. Employers cannot use this opportunity to solicit additional medical details beyond what is required for certification.
Key Takeaway: Respecting FMLA Boundaries
While the desire to manage and monitor intermittent FMLA leave is understandable, employers must operate within the legal framework of the FMLA. Policies requiring a doctor’s note for each FMLA absence are not permitted and can lead to legal challenges. Instead, employers should focus on utilizing the FMLA’s предусмотренные methods of medical certification, recertification, and clarification to ensure compliance and effectively manage FMLA leave. Understanding and adhering to these regulations is crucial for maintaining legal compliance and fostering a fair and legally sound workplace environment.
