Over the past few weeks, I have had the pleasure of presenting on complex FMLA issues for attorneys and HR professionals attending several seminars sponsored by the National Employment Law Institute (NELI), which puts on some of the best employment law seminars in the country (my session, of course, being a drag on their success!). During one of the sessions, an attendee asked a thoughtful question that seems to come up from time to time in my practice:
Can an employer request that an employee submit a doctor’s note for each of their intermittent FMLA absences?
At the time, I didn’t give a terribly thoughtful answer, so I figured I would address it head on here for the benefit of my fellow FMLA peeps. [My apologies to the woman in the audience dressed in red with shoulder length brown hair who asked the question...would someone be sure to pass this onto her?]
I wish I could answer this question with an unequivocal “YES,” but my guidance would go against the weight of court decisions on this very topic. I wish, for instance, that I could advise employers that it is perfectly legal to maintain a policy in which employees who take FMLA leave for a doctor’s appointment must return to work with a doctor’s note in hand. This would be entirely helpful, as it ensures that the employee actually attended the appointment and was absent from work for a legitimate reason.
Much to my chagrin, the courts don’t agree with me.
The latest example is Oak Harbor, an employer which understandably was sick and tired of its employees taking off on Fridays and Mondays. To clamp down on suspected FMLA abuse, the company’s Human Resources Director sent a letter to employees containing language along the following lines:
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.
Robert was one of Oak Harbor’s employees and 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. Interestingly, the company determined that nearly 90 percent of Robert’s absences over a six-year period fell in conjunction with a holiday or weekend. Harumph!
When Robert failed or refused to provide doctor’s notes to confirm he actually attended the therapy sessions, he was disciplined.
The Court Ruling
In an unusual twist, Oak Harbor filed suit against Robert and another employee in a similar situation, asking the court to declare that its practice of requiring a doctor’s note for these above absences was perfectly legitimate under the FMLA. The Court, however, gave Oak Harbor a legal smack down. Finding the FMLA regulations clear with respect to obtaining an employee’s medical information, the court reminded the parties:
The 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 . . . 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 health care provider, the court opined, the employer “may not request additional information from the health care provider.” 29 C.F.R. § 825.307(a). For this court, when the employer required a doctor’s note for every FMLA-related absence — doctor’s appointment or not — it was tantamount to requesting re-certification over and over again. Given the very specific rules about seeking recertification, Oak Harbor’s practice was deemed illegal. Oak Harbor Freight Lines, Inc. v. Antti (pdf)
Insights for Employers
So what do we do now? Here are a few thoughts:
Manage the medical certification process with all the skill and grace you have within you! Get the information you need, seek clarification and verification if the opportunity presents itself. Moreover, initial medical certification is an employer’s opportunity to seek second and third opinions, so be sure to advocate for your rights at this stage if you have reason to doubt the validity of the certification.
Similarly, seek recertification if and when you receive information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
The far majority of Robert’s water therapy sessions (typically scheduled on Fridays and Mondays) could have been held on Saturday, which was his day off. Why? Because the doctor’s office was open on Saturdays! Keep in mind that the FMLA regulations require that the employee make a reasonable effort to schedule medical appointments in a way that does not impact your operations. So, when your employee needs time off for therapy or medical appointments, push back a bit on your employee to determine whether these appointments can be scheduled during non-work hours in the evening or on weekends.
I believe the Oak Harbor decision still leaves the door open for employers to establish a policy that requires any employee to provide a doctor’s note in exchange for paid leave under the employer’s normal paid leave policy. So long as the policy is applied consistently, the employer would not be singling out those employees on FMLA leave, nor would you be denying one’s FMLA leave. I’ve opined on this topic before in a previous FMLA podcast you can access here.