Intermittent leave under the Family Medical Leave Act (FMLA) presents unique challenges for employers, particularly when it comes to administration and tracking. The desire to manage potential abuse of intermittent FMLA leave is understandable, but employers must operate within the legal boundaries of the FMLA. A common question arises: Can an employer request a doctor’s note for each instance of intermittent FMLA leave? The answer, as clarified by a pivotal court case, is generally no.
A recent Ninth Circuit case, Oak Harbor Freight Lines, Inc. v. Antti, sheds light on this very issue. This case underscores that employers should primarily rely on the FMLA’s medical certification and recertification processes rather than demanding a doctor’s note for every absence. Implementing policies that require a doctor’s note for each intermittent leave absence can inadvertently violate the FMLA by conflicting with its established procedures. Such policies can be misconstrued as requiring employees to repeatedly re-establish their FMLA eligibility, adding undue burden and potentially infringing on employee rights.
Understanding FMLA Intermittent Leave and Employer Challenges
The FMLA allows employees to take leave intermittently – in separate blocks of time – for qualifying medical reasons. This can be incredibly beneficial for employees managing chronic health conditions. However, for employers, tracking these intermittent absences and ensuring compliance can become complex. Some employers, concerned about potential misuse of intermittent leave, may seek additional verification beyond the standard FMLA procedures. This is where the temptation to request a doctor’s note for each absence arises.
The Case of Oak Harbor Freight Lines: Doctor’s Notes Under Scrutiny
Oak Harbor Freight Lines, aiming to address perceived patterns of intermittent leave abuse (specifically absences on Mondays, Fridays, or before holidays), implemented a policy mandating a doctor’s note for every instance of intermittent FMLA leave. The company believed this would deter FMLA misuse and improve absence tracking.
The policy required employees to submit a doctor’s note for each absence within 15 days. This note had to confirm the employee was seen by a medical provider during the absence and explain how the absence related to their FMLA-qualifying condition. The company even offered to reimburse employees for any co-payment associated with obtaining these notes. The company communicated this policy to employees approved for intermittent FMLA leave with the following statement:
“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.”
Why the Policy Violated FMLA Regulations
The court in Oak Harbor Freight Lines ruled that the company’s policy of requiring a doctor’s note for each intermittent FMLA absence was indeed a violation of the FMLA. The court emphasized that the FMLA statute and its regulations outline specific procedures for medical verification – primarily through certification and recertification – and do not authorize employers to request a doctor’s note for every absence.
The court reasoned that the employer’s policy essentially treated each absence as a new request for FMLA leave. By demanding a doctor’s note for each instance, the company was, in effect, requiring employees to recertify their medical condition repeatedly, circumventing the FMLA’s intended recertification process. The court stated that if Congress or the Department of Labor had intended to allow such frequent medical verifications, it would have been explicitly stated in the statute or regulations. Instead, the regulations specifically limit medical verification to certification and recertification, with recertification serving as the mechanism to verify the ongoing need for leave.
FMLA Compliant Ways to Obtain Medical Verification
While employers cannot demand a doctor’s note for each intermittent absence, the FMLA does provide legitimate avenues for obtaining medical information to support an employee’s need for leave. The cornerstone of FMLA medical verification is the medical certification.
Medical Certification and Recertification: The Correct Approach
Under the FMLA, employers can require employees to provide a medical certification to support their request for FMLA leave, including intermittent leave. This certification can request details such as the expected dates of treatment, the medical necessity for intermittent leave, and the anticipated duration of the need for such leave.
Furthermore, employers have the right to request recertification of a medical condition. However, the FMLA regulations carefully define the circumstances and frequency of recertification. Generally, employers can request recertification no more often than every 30 days and only in connection with an employee’s absence, unless specific exceptions apply. Recertification may be requested in less than 30 days if there is a significant change in circumstances or if the employer has reason to doubt the continuing validity of the original certification.
Second and Third Opinions and Authentication
If an employer has doubts about the initial medical certification, the FMLA allows for further steps. Employers can request a second medical opinion (at the employer’s expense). If the second opinion differs from the first, the employer can even require a third, binding opinion from a jointly agreed-upon healthcare provider.
Additionally, employers are permitted to contact the employee’s healthcare provider for the purpose of authentication and clarification of the medical certification. It is crucial to note that this contact is limited to clarifying what has already been provided in the certification and authenticating its validity. Employers cannot use this contact to solicit additional medical information beyond what is required in the certification itself.
Key Takeaway for Employers
The Oak Harbor Freight Lines case serves as a critical reminder for employers managing intermittent FMLA leave. While the desire to verify absences is legitimate, policies demanding a doctor’s note for each instance of intermittent leave are not permissible under the FMLA. Instead, employers must adhere to the FMLA’s established framework of medical certification and recertification, along with the options for second and third opinions and authentication, to ensure compliance and effectively manage FMLA leave requests. Focusing on these legally sound methods will help employers navigate the complexities of intermittent FMLA leave while respecting employee rights and adhering to FMLA regulations.
