Here we present a leave-related workplace scenario intended to help HR professionals better understand an employer’s responsibilities under the Family and Medical Leave Act (FMLA). We present the “facts” of the scenario (inspired by an actual court case) and explain where the employer went wrong and what they may have done differently. This scenario involves an employer that required employees to provide a doctor’s note for every instance of intermittent leave.
Speedy, Inc., a common carrier, guarantees delivery of packages within a 1-hour window on a scheduled delivery day. For this reason, employee attendance is essential to the employer’s operation.
Speedy uniformly requires a note from a medical provider for employees taking intermittent leave. When an employee is approved for intermittent medical leave, Sally, Speedy’s HR director, sends 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.
Speedy interprets the policy to require a note within 15 days of the absence or tardy date. In addition, Speedy interprets the letter to mean that the employee need not actually visit a provider’s office—rather the employee must only ask his provider or someone in the provider’s office to submit a brief one- or two-sentence note confirming the reason for the absence or tardy.
Robert, a Speedy deliveryman, requested leave for back pain. He submitted complete and adequate medical certification indicating a need for intermittent leave for flare-ups and ongoing monthly water therapy with his physician. The stated frequency for flare-ups on the medical certification was 1 to 2 times per month. In fact, Robert took leave for an average of 5 to 6 flare-ups per month.
Robert’s water therapy clinic is open on Saturdays, his day off. However, Speedy determines that during the course of his 6-year employment, nearly 90 percent of Robert’s absences fell in conjunction with a holiday or weekend.
When Robert failed or refused to provide doctor’s notes to confirm he actually attended the therapy sessions, he was disciplined according to company policy. Robert sued for a violation of FMLA and state family leave law.
In the case that inspired this hypothetical, the court held that the employer’s requirement that employees provide a doctor’s note in each instance of intermittent leave was a violation of FMLA. (Oak Harbor Freight Lines, Inc. v. Antti, No. 3:12-CV-00488-KI (U.S. D.Ct Ore. 2013)).
1. What are the FMLA’s requirements for certification of intermittent leave?
Under the FMLA an employer may require the completion of a medical certification, which must be deemed sufficient if it includes, in the case of intermittent leave:
- The dates of expected treatment,
- The medical necessity of intermittent leave, and
- The expected duration of the intermittent leave and periods of recovery.
FMLA regulation: 29 CFR Sec. 825.306(6)
2. Can Speedy ask Robert to submit a doctor’s note for each of his intermittent FMLA absences?
No. If an employer disagrees with the initial medical certification, a specific statutory process authorizes an employer to request second and third opinions, and to require the employee to obtain a subsequent recertification “on a reasonable basis.” But once an employee provides “complete and sufficient” certification signed by the healthcare provider, the employer may not request additional information from the healthcare provider. So, when the employer required a doctor’s note for every FMLA-related absence—doctor’s appointment or not—it was a violation of the FMLA.
FMLA regulation: 29 CFR Sec. 825.307(a)
3. What should Speedy do to address the frequency of Robert’s flare-ups beyond the certified need?
In cases when the frequency of leave substantially exceeds the anticipated frequency stated in the medical certification, Speedy could utilize recertification as a means of determining if the employee is entitled to FMLA leave.
Under FMLA, an employer may request recertification of an employee’s serious health condition no more often than every 30 days, unless one of the following exceptions applies:
- The employee requests an extension of leave;
- Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or
- The employer receives information that casts doubt on the employee’s stated reason for the absence.
In Robert’s case, it is likely that 5 to 6 flare-ups per month would be considered to “substantially” exceed the projected 1 to 2 occurrences certified by his doctor. As a result, Speedy could seek recertification due to “changed circumstances” (exception #2, above).
Remember, the employee must provide the requested recertification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer’s request), unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good-faith efforts.
The employer may ask for the same information when obtaining recertification as that permitted for the original medical certification. The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or adequate authorization to the healthcare provider) in the recertification process as in the initial certification process. Recertification is at the cost of the employee.
FMLA regulation: 29 CFR Sec. 825.308
4. What should Speedy do about the excessive number of absences that fall in conjunction with a holiday or weekend?
Even though Robert’s water therapy clinic is open on Saturdays (his day off), nearly 90% of his absences for therapy fell on a Monday or Friday. When Speedy became aware of the pattern of Monday/Friday absences, it should have worked with Robert to encourage him to schedule his therapy appointments on his day off (Saturdays). FMLA regulations require that the employee make a reasonable effort to schedule medical appointments in a way that does not impact the employer’s operations.
In addition, Speedy could seek recertification if Robert’s excessive use of Monday/Friday leave casts doubt on the original certification of leave. As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, Speedy should give the healthcare provider a record of Robert’s absence pattern and ask the healthcare provider if the serious health condition and need for leave is consistent with such a pattern.
FMLA regulation: 29 CFR Sec. 825.203