Intermittent leave under the Family Medical Leave Act (“FMLA”) can pose a significant (and often frustrating) administrative and tracking burden on an employer. Further, when attempting to ferret out abuse, an employer has a limited ability to question or control the use of intermittent leave. For example, a recent case (which was an issue of first impression in the Ninth Circuit) reminds employers that information from an employee’s medical provider should only come in the form of a medical certification. Specifically, in Oak Harbor Freight Lines, Inc. v. Antti, 2014 U.S. Dist. LEXIS 20203 (D. Or. Feb. 19, 2014), the court held that a company’s policy of requesting a doctor’s note for each intermittent FMLA absence violated the FMLA because the policy directly conflicted with the FMLA’s explicit recertification procedure. The court explained that the policy was in effect treating each absence as a separate period of FMLA leave and essentially requiring employees to reestablish eligibility for each absence.
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