Requiring a doctor’s note for each FMLA absence may be unlawful

Those four-letter federal employment statutes — FMLA and FLSA — can be a real pain in the ass, amirite?

Today’s let’s focus on a major employer pitfall: intermittent leave under the Family and Medical Leave Act.

The FMLA regulations define intermittently leave this way:

“FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee’s schedule for a period of time, normally from full-time to part-time.”

Now, an employer can require that an employee taking FMLA provide a medical certification. And if the employee seeks intermittent leave for planned medical treatment, the certification should state the dates on which such treatment is expected to be given and the duration of such treatment.

Importantly, the law is clear that if an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. And an employer may request recertification no more often than every 30 days and only in connection with an absence by the employee unless an exception applies.

So, it piqued my interest when I saw this opinion following a lawsuit initiated by an Oregon employer, which sued its employee and asked a federal court to bless the employer’s policy of requiring a separate doctor’s note for every absence, FMLA or otherwise.

Because, the Court, was all like, hells no:

“While both the FMLA itself and its implementing regulations are silent on the specific question at issue here-whether Oak Harbor’s doctor’s note policy to support an already medically certified FMLA-protected absence is permissible-the statute and regulations ‘show an intent to limit medical verification to certification and recertification as delineated. Neither the FMLA nor its regulations provide for any other means by which an employer can require documentation from an employee’s medical provider.'”

In other words, requiring a doctor’s note for each absence is tantamount to requiring a medical certification for each absence. And that’s FMLA interference.

So, what this means for you, friends, is that when an employee comes to you and seeks intermittent leave, make sure to request a medical certification to ensure that the initial FMLA request is warranted. If that certification seems sketchy, consider a second and third medical opinion.

But, if that certification passes muster, be mindful of the rules governing re-certification.