October 18, 2021

Volume XI, Number 291

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October 15, 2021

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“Trust, But Verify” Approach to Confirming Employee Need for Family and Medical Leave Act (FMLA) Intermittent Leave Rejected

“Trust, but verify,” the Russian proverb used often by former President Ronald Reagan, suggests an approach many employers would welcome when it comes to employee use of intermittent leave under the FMLA. Sure, the employee said he was taking intermittent leave pursuant to his FMLA certification. But can an employer verify that the absence was due to the FMLA-qualifying condition by requiring a doctor’s note for each absence. Trust, but verify, the use of FMLA intermittent leave. I can feel the excitement mounting among the employer community.

Trust you may, verify you may not, a federal court held recently. The court found unlawful an employer’s requirement that employees who have been approved for intermittent FMLA leave submit a short note from a medical provider for each absence, stating briefly that the employee’s absence was related to the FMLA-qualifying condition for which intermittent leave was granted. Oak Harbor Freight lines, Inc. v. Antti (D.OR., February 19, 2014). “[T]he [FMLA] statute and regulations ‘show an intent to limit medical verification to certification and recertification,” the court explained (citation omitted). By requiring a doctor’s note for each absence, the employer “is in effect treating each absence as a separate period of FMLA leave and requiring employees to reestablish eligibility for each absence,” the court added.

The court noted that if the employer’s policy was limited to requiring an employee who took intermittent leave to attend a medical appointment to produce a note verifying attendance at the appointment, that “would make much more sense.” While the court did not specifically approve this “appointment” approach, it is possible that you may be able to “trust, but verify” attendance at medical appointments.

Jackson Lewis P.C. © 2021National Law Review, Volume IV, Number 70
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About this Author

Michael Soltis, Jackson Lewis Law Firm, Disability and Health Management Attorney
Office Managing Principal and Office Litigation Manager Stamford

Michael J. Soltis is Office Managing Principal and Litigation Manager of the Stamford, Connecticut, office of Jackson Lewis P.C. He has represented employers in a wide range of employment and labor matters for more than 30 years.

Mr. Soltis has advised on and litigated matters involving just about every type of employment claim, including discrimination claims, family and medical leave claims, public policy and whistleblower claims, contract claims, and common law employment claims. He has litigated cases in state court and...

203-961-0404
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