Can you request doctors’ notes for each suspicious FMLA absence?
It’s no secret, administering intermittent FMLA leave is a pain in the butt. One company tried to make it easier on itself by adding a documentation requirement to its leave policy. The question is, was the move legal?
The company: Oak Harbor Freight Lines.
The problem: The vast majority of the days two employees were taking off under the guise of intermittent FMLA were Mondays and Fridays.
The policy change: Oak Harbor began requiring employees to provide a doctor’s note for every absence they wanted to be counted as an FMLA absence.
The lawsuit
Now we can all understand where Oak Harbor was coming from, right? Clearly the pattern of taking Mondays and Fridays off was a red flag that the FMLA was being abused.
So in an attempt to fight that suspected abuse, Oak Harbor began asking for proof that employees were taking off for legitimate FMLA purposes by way of doctors’ notes.
However, two employees Chat Antti and Robert Argyle were not happy with this new policy. After all, 94% of the days Antti took intermittent FMLA leave were Mondays, Fridays or a day directly adjacent to a holiday. And for Argyle, his FMLA absences fell on one of those days 89% of the time over a six-year period.
Eventually, the matter ended up in court where Antti and Argyle claimed Oak Harbor’s policy requiring them to provide a doctor’s note for every FMLA-related absence violated the federal law.
Oak Harbor fought back, claiming it’s policy was perfectly legitimate.
Legal or not legal?
The U.S. District Court for the District of Oregon (Portland Division), while sympathetic to Oak Harbor’s plight, ultimately sided with Antti and Argyle.
It said the FMLA’s documentation rules are “fairly rigid,” and once an employee hands in “complete and sufficient” medical certification provided by a health care provider (which both employees did), the employer “may not request additional information from the health care provider” outside of a request for recertification.
The court went on to say that Oak Harbor was essentially requesting recertification over and over again, and the law only allows for recertification on a “reasonable basis,” which is “no more often than every 30 days.”
The district court judge said, “I sympathize with Oak Harbor’s conundrum. Intermittent leave can impose an administrative tracking burden.”
But the judge later went on to add, “However, if Oak Harbor’s concern is leave abuse, the recertification process protects it: its doctor’s note policy, untethered to the statutory and regulatory limitations on requesting such recertifications, violates the law.”
Two different approaches
Once Oak Harbor noticed the suspicious pattern of absences, it had a right to request recertification (assuming it was at least 30 days following the employees’ submission of completed initial certifications). And while that’s probably what it should’ve done, it decided to go a different route — and ended up in legal hot water as a result.
But another important thing to remember about the FMLA is this: It does give employers room to push back on time-off requests when it’s suspected medical treatment could be scheduled during non-work hours.
Example: The lawsuit involving Oak Harbor said that Argyle was attending water therapy sessions to treat back problems on Fridays, while he could’ve been attending therapy on Saturdays or Sundays.
Oak Harbor could’ve requested that Argyle attempt to reschedule his therapy sessions over the weekend.
Bottom line: Asking for recertification is OK, assuming it’s done on a reasonable basis. But requiring a note from a doctor for every intermittent FMLA-related absence is not.
Cite: Oak Harbor Freight Lines Inc. v. Antti
