May Employees Be Required to Provide a Doctor’s Note for Each Intermittent FMLA Absence? By Ruth Horvatich, McGrath North The scenario is one that happens far too often. An employee obtains a medical certification pursuant to the Family and Medical Leave Act (FMLA) indicating that the employee suffers from a serious health condition that can flare up at any time causing the employee to miss work a few times a month. Conveniently, the flare ups seem to always occur on Fridays and Mondays and on those rare 70 degree days in February in the Midwest. In order to prevent FMLA abuse, an employer comes up with a foolproof plan: requiring employees to provide a doctor’s note for each of their intermittent FMLA absences. But, is this plan lawful under the FMLA? Although the regulations are silent on this issue, the courts have answered no—employers may not require a doctor’s note for each intermittent FMLA absence.
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In Oak Harbor Freight Lines, Inc. v. Antti, the United States District Court in Oregon held that an employer’s requirement that employees on FMLA-approved intermittent leave provide a doctor’s note for each absence was unlawful as it was tantamount to requesting medical certification for each absence. The district court found that although silent on the specific issue, the FMLA statute and regulations show an intent to limit medical verification to certification and recertification every 30 days and that employers may only request recertification in fewer than 30 days in the case of changed circumstances or when the employer doubts the continuing validity of the certification. Additionally, the district court noted that neither the FMLA nor its regulations provide for any other means by which an employer may require documentation from an employee’s medical provider. Although this decision has limited precedential value, it is instructive and may be followed by other jurisdictions when faced
SOUTH DAKOTA MUNICIPALITIES
