HR Management & Compliance

Requiring Notes for Each Intermittent FMLA Absence Could Be Improper

A company’s policy of requiring a doctor’s note for each intermittent absence under the Family and Medical Leave Act violates FMLA because the policy directly conflicts with FMLA’s recertification procedure. So ruled a federal district court in a consolidation of cases that presented an issue of first impression in the jurisdiction of the 9th U.S. Circuit Court of Appeals. The case is Oak Harbor Freight Lines, Inc. v. Antti, 2014 U.S. Dist. LEXIS 20203 (D. Ore. Feb. 19, 2014).

The U.S. District Court for the District of Oregon, Portland Division denied Oak Harbor’s motion for a declaratory judgment that its policy requiring employees to obtain a short note from a medical provider is not a violation of FMLA or the Oregon FMLA.

Background

Oak Harbor Freight Lines believed a few employees were disproportionately taking time off on Mondays and Fridays, or just before a holiday. In an effort to address these apparent FMLA abuses, Oak Harbor started uniformly requiring a note from a medical provider for employees taking intermittent FMLA leave.

Oak Harbor’s Attendance Policy

Oak Harbor treats any absence (or tardiness), other than a previously approved vacation day or legally-protected FMLA absence, as grounds for charging an employee with an “occurrence” (or half an occurrence point). After nine months, an occurrence point (or fraction of a point) will roll off an employee’s personnel record. If an employee accrues five or more occurrence points, the employee will be subject to unpaid suspension. Six or more occurrence points may result in termination.

When an employee is approved for intermittent medical leave, Oak Harbor sends a letter to the employee containing language along the following lines:

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.

Problems with the Policy

Whether a select number of employees gave Oak Harbor reason to suspect improper use of intermittent leave was not at issue in this case as much as the facial validity of Oak Harbor’s attendance policy.

Although the letter to the employee seeking intermittent leave contains no time limit (an oversight by the human resources department, it appears), Oak Harbor said in court that it interprets the policy to require a note within 15 days of the absence or tardiness.

“Reasonable basis” for recertification under FMLA is “no more often than every 30 days and only in connection with an absence by the employee” unless an exception applies. 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. See 29 C.F.R. §825.308(a)(c)

Court Weighs in

Oak Harbor has no statutory or regulatory authority to require its employees taking approved intermittent leave to get a doctor’s note for each absence. “[Oak Park’s] requirement that its employees on intermittent leave provide a doctor’s note for each absence is tantamount to requesting a medical certification for each absence,” wrote District Judge Garr M. King.

The court explained that Oak Harbor’s attendance policy was in effect treating each absence as a separate period of FMLA leave and essentially requiring employees to reestablish eligibility for each absence. “Such a policy or practice directly conflicts with FMLA’s explicit recertification procedure specifically intended to ferret out abuse,” wrote Judge King.

Employer Takeaway

Intermittent leave can impose an administrative and tracking burden. FMLA’s recertification process intends to protect the potential for leave abuse.

The employer may require the completion of a medical certification, which must be deemed sufficient if it includes, in the case of intermittent leave: (1) the dates of expected treatment; (2) the medical necessity of intermittent leave; and (3) the expected duration of the intermittent leave. If an employer disagrees with the initial medical certification, FMLA authorizes an employer to request second and third opinions, and to require the employee to obtain a subsequent recertification “on a reasonable basis.”

For the complete article, visit Thompson’s HR Compliance Expert site.

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