Employer Requiring Doctor's Note for Intermittent Leave Violated FMLA

by Baker Donelson

The United States District Court for the District of Oregon recently held that an employer's requirement that employees on intermittent leave provide a doctor's note for each absence violated the Family and Medical Leave Act (FMLA). In Oak Harbor Freight Lines, Inc. v. Antti (D. Or. Feb. 19, 2014), the court explained that such a requirement was tantamount to requesting medical certification for each absence.

The FMLA allows eligible employees with serious health conditions to take intermittent leave related to their medical condition. An employer may require a medical certification from a doctor, which must be deemed sufficient if it includes the dates of expected treatment, the medical necessity of intermittent leave, and the expected duration of the intermittent leave.

If the employer disagrees with the initial medical certification, a statutory process authorizes the employer to request second and third opinions and to require its employee to obtain a subsequent recertification on a reasonable basis. A reasonable basis for recertification is no more often than every 30 days and only in connection with an absence by the employee, unless an exception applies. An employer may request certification in less than 30 days when circumstances change or when the employer doubts the continuing validity of the certification.

In this case, to curb FMLA leave abuse, Oak Harbor Freight Lines, Inc. instituted a uniform policy requiring an employee taking intermittent leave to submit a doctor's note for each absence. The employee was not required to actually see a doctor; rather, the employee only needed to ask the doctor's office to provide a brief note confirming the reason for the absence.

Oak Harbor brought suit against two employees who took intermittent leave, seeking declaratory judgments that its policy did not violate the FMLA. Over a six-year period, employee Robert Argyle's intermittent leave fell adjacent to a holiday or weekend almost 89 percent of the time. Likewise, employee Chad Antti's leave coincided with a holiday or weekend 94% of the time. The employees counterclaimed alleging disability discrimination, and the cases were consolidated in this opinion.

The court concluded that the suspected abuse was no excuse for Oak Harbor's policy. The court emphasized that the FMLA provides a fairly rigid process to document an employee's medical condition, which suggests Congress intended to explicitly control the means by which an employer may obtain information from an employee's doctor. Further, the court noted that regulations from the Department of Labor "suggest by implication that information from a doctor must come only in the guise of a medical certification."

Although Oak Harbor argued its note policy was simply a means of independently confirming the reason an employee had given for the absence, the court concluded Oak Harbor was essentially asking for a medical opinion establishing the "medical necessity" for the absence – the very thing certification is intended to do. Oak Harbor was effectively treating each absence as a separate period of FMLA leave and requiring its employees to reestablish eligibility for each absence. Oak Harbor's policy directly conflicted with the FMLA's explicit recertification procedure designed to prevent abuse.

These consolidated cases presented an issue of first impression in the Ninth Circuit, and other jurisdictions may follow suit. This opinion serves as a good reminder that employers suspecting leave abuse should exercise their rights to recertification only as explicitly allowed by the FMLA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.