Can You Request Doctors’ Notes for Each Suspicious FMLA Absence?

Got a problem with employees always taking intermittent FMLA leave around weekends? You’re not alone. Case in point:

To combat what it perceived to be FMLA abuse, an employer in Oregon adopted a policy requiring all employees on intermittent leave to submit a doctor’s note anytime they were absent under the leave.

A federal court said the policy wasn’t legal, as it ran counter to the rules about when employers can require recertification of an FMLA-qualifying condition.

What’s in the Attendance Policy?

To make good on customer guarantees and deliver cost-effective service, Oak Harbor Freight Lines needs employees to show up for work. The company’s attendance policy reflects this need. It treats any absence – other than a previously approved vacation day or FMLA-approved absence – as grounds for discipline.

Employees who accrue a certain number of absences over time are subject to an unpaid suspension and termination.

At some point, Oak Harbor noticed a few employees approved for intermittent FMLA leave were taking a disproportionate amount of that leave on Mondays and Fridays or just before a holiday.

In late 2007 or early 2008, Oak Harbor notified all employees approved for intermittent FMLA leave that they would have to submit a note from their medical provider each time they were absent for an FMLA-related reason. Specifically, the notes had to:

• Confirm the healthcare provider saw the employee during the absence, and
• Explain how the absence related to the employee’s FMLA qualifying condition.

Despite what employees were told, Oak Harbor said workers didn’t actually have to visit the doctor. They just had to get someone in the doctor’s office to confirm the absence was FMLA-related.

Oak Harbor said it issued the policy to keep employees from lying about their absences and to help it track the ones related to FMLA.

Employer Wanted Court Approval

In 2013, Oak Harbor filed separate lawsuits against two employees, Chad Antti and Robert Argyle, who were taking intermittent leave around weekends and holidays and not turning in doctor’s notes.

The sole purpose of the lawsuit was to have the court declare the attendance policy was valid.

Employee #1: Chad Antti

Antti was diagnosed with a bleeding ulcer in January 2008 and approved for intermittent FMLA leave the following month.

Antti’s doctor would not write a note confirming his absence was FMLA-related – even if the absence was just for home care – unless Antti visited the office and paid the $20 co-pay for the visit. For that reason, Antti didn’t submit doctor’s notes for many of his absences.

He was warned that he could be fired for failing to follow the policy.

Employee #2: Robert Argyle

Argyle began taking his intermittent FMLA leave in 2008.

In 2010, he requested leave for lumbar radicular pain. His certification indicated his treatment included ongoing monthly doctor’s visits.

During the summer of 2012, Argyle scheduled his treatment on Fridays. He offered to notify Oak Harbor a week in advance of each appointment, but Oak Harbor insisted on a doctor’s note as well.

Over three months, Argyle provided Oak Harbor with 11 notes. He said his doctor eventually refused to write them.

In October 2012, Oak Harbor put Argyle on indefinite suspension because he didn’t have notes for 13 absences.

Policy was Contrary to FMLA Reg

The court consolidated the two lawsuits and determined the policy was invalid. It granted Antti and Argyle pretrial judgment on the claim.

The Family and Medical Leave Act has a regulation on recertification that’s meant to ferret out abuse, the court said. Generally, employees may ask for recertification “no more often than every 30 days.”

Moreover, a DOL fact sheet outlines three specific exceptions to the general 30-day rule. It specifically says employers may request a recertification in less than 30 days only if the:

• The employee requests an extension of leave,
• Circumstances described by the previous certification have changed significantly, or
• The employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification.

But none of those exceptions applied here.

In the court’s view, Oak Park’s policy directly conflicted with the regulation because it treated each absence as a separate period of FMLA leave and required employees to reestablish eligibility every time they were absent.

Oak Park argued the policy was valid as to Antti and Argyle because of the timing of their absences.

The court said Oak Park’s lawsuit only asked for a declaration that the policy was legal on its face. The court declined to address whether the policy was valid as to Antti and Argyle.

Bottom line: Asking for recertification is OK, assuming it’s done on a reasonable basis that is consistent with FMLA regulations. But requiring a doctor’s note for every intermittent FMLA-related absence is not.

Oak Harbor Freight Lines, Inc. v. Antti, 998 F.Supp.2d 968 (D. Ore. 2014).

Next Steps: Help With FMLA Certification Issues

Most HR pros agree that FMLA certifications are one of the biggest challenges of the job.

For a quick refresher on how to handle them, check out Questionable FMLA Certification? 5 Ways to Fix the Problem.