Requiring Doctor's Note for Each FMLA-approved Intermittent Leave Tantamount to Requesting Medical Certification for Each Absence: D. Oregon | Practical Law

Requiring Doctor's Note for Each FMLA-approved Intermittent Leave Tantamount to Requesting Medical Certification for Each Absence: D. Oregon | Practical Law

In Oak Harbor Freight Lines, Inc. v. Antti, the US District Court in Oregon held that an employer's requirement that employees on Family and Medical Leave Act of 1993 (FMLA)-approved intermittent leave provide a doctor's note for each absence is tantamount to requesting medical certification for each absence.

Requiring Doctor's Note for Each FMLA-approved Intermittent Leave Tantamount to Requesting Medical Certification for Each Absence: D. Oregon

by Practical Law Labor & Employment
Published on 03 Mar 2014 • USA (National/Federal)
In Oak Harbor Freight Lines, Inc. v. Antti, the US District Court in Oregon held that an employer's requirement that employees on Family and Medical Leave Act of 1993 (FMLA)-approved intermittent leave provide a doctor's note for each absence is tantamount to requesting medical certification for each absence.
On February 19, 2014, in Oak Harbor Freight Lines, Inc. v. Antti, the US 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 is tantamount to requesting medical certification for each absence (3:12-CV-00488-KI, (D. Or. Feb. 19, 2014)).
Since 2007, the employer Oak Harbor Freight Lines, Inc. (Oak Harbor) began uniformly requiring that employees who take intermittent leave provide a note from their medical provider.
Oak Harbor sued two employees who took intermittent medical leave, seeking declaration that the employer's requirement that employees provide a doctor's note for each intermittent absence was permitted by the FMLA and the Oregon Family and Medical Leave Act (OFLA). The employees counterclaimed alleging disability discrimination under the Americans with Disabilities Act of 1990 (ADA). Both parties cross-moved for partial summary judgment.
The employees' primary argument was that Oak Harbor has no statutory or regulatory authority to require its employees taking approved intermittent leave to provide a medical provider's note for each absence.
The district court held, among other things, that Oak Harbor's requirement that employees on intermittent leave provide a doctor's note for each absence is tantamount to requesting a medical certification for each absence.
The district court found that:
  • While both the FMLA and its implementing regulations are silent on the specific question of whether an employer's doctor's note policy to support an already approved FMLA intermittent absence is permissible, the statute and regulations show an intent to limit medical verification to certification and recertification every 30 days. Only in the case of changed circumstances or when the employer doubts the continuing validity of the certification may an employer request recertification in fewer than 30 days.
  • 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 US district court case has limited precedential value, it is a rare decision on a complex nuance of FMLA law. This Oregon case is instructive on intermittent leave, one of the most complicated areas under FMLA law, and it may be followed by other jurisdictions seeking guidance on this topic since there is little existing case precedent. It is also a good reminder to employers that, although they can still require employees to follow existing call-out procedures, they cannot turn call-out procedures into pseudo-certifications by requiring a doctor’s note.