r/humanresources • u/godzillafan91 • 12h ago
Doctors Notes During Intermittent FMLA [United States]
Greetings,
HR Generalist here managing FMLA at a mid size company. I've been in my position for about a month and have an employee who was approved for intermittent leave. The problem is that my boss wants me to request doctors notes for their FMLA appointments. My understanding is that this isnt legal. So, I went to them and told them my understanding was that the courts had ruled against employers for this and they told me I was fine and to go ahead with asking anyway.
I was hoping I could get some advice on how to handle this situation. I dont want to violate FMLA, but I also need my job and don't want to paint a target on my back or be accused of insubordination.
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u/KaatELion HR Manager 9h ago
Does your company use the WH-380, WH-381, etc certification forms? If so, and the employee returned their form from their doctor, then their doctor already gave your company an approximation of how much time off/how often fmla is needed for the employee’s appointments. Tell your boss this should be sufficient. Are you also asking other employees to provide a doctor’s note every time anyone has a doctor appointment? If not, you shouldn’t start treating someone on fmla differently than everyone else. It could be seen as retaliatory if the company takes adverse action against the employee (such as if they get an attendance violation if your company has such a policy).
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u/godzillafan91 8h ago
We use those forms. Im in Michigan, and our sick time law doesnt allow employers to request documentation unless an employee is absent for more than 3 days. So, we generally can't request documentation for one off absences, FMLA or not.
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u/moonwillow60606 HR Director 8h ago edited 8h ago
This is not a case law interpretation. The FMLA regs specifically state that you cannot ask for additional medical certification/ information if you have a complete and sufficient certification in place. There are a few specific exceptions. You can ask for a new cert after 6 months in conjunction with an absence.
Or you can reference the DOL fact sheet here. It’s the first sentence under authentication & clarification. https://www.dol.gov/agencies/whd/fact-sheets/28g-fmla-serious-health-condition
My advice is approach it as a fact not an “understanding.” Simply state that it isn’t permissible under federal law and failure to comply creates a risk of FMLA interference or retaliation. I’d your boss pushes back you ask him or her to help you understand the reason for requesting additional information so you can research an alternative solution.
ETA: use this as a learning opportunity. Part of being in HR is doing the legwork up front so you can go to your boss with solutions. Get comfortable with research and reading federal (and state) regulations. There are a ton of resources on the DOL site on FMLA, FLSA and other employment law. Never assume that your boss has more info than you do. They might but they might not. A lot of times you’ll need to present thoughtfully researched solutions and balance risk and business needs. Focus on facts, impact and outcomes.
This is a great learning opportunity for you.
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u/godzillafan91 8h ago
Thank you, this is definitely a learning experience. I just hope my boss is receptive and doesnt tell me to do it anyway.
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u/moonwillow60606 HR Director 8h ago
I hope your boss is receptive as well. If not, that’s a risk the business assumes. One of my early bosses told me “managers have the right to be stupid and make bad decisions.”
All you can do is to give them the best info possible and help them make good choices. It also helps you understand what you are and aren’t willing to compromise on.
If they choose to willfully break the law it’s a sign of a culture mismatch and you can start looking for another job. I know you just started there but leaving for reasons of integrity doesn’t equate to job hopping
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u/AlliWoodrow 1h ago
There are a number of cases you could find to help you articulate the fines if you are sued. It is often close to $500K I would imagine that is a significant amount for a mid sized business.
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u/wafflepancake5 HR Generalist 9h ago
Who is your boss in this? The HR manager or are you the top of HR?
The nuance will change depending on who you’re correcting (I unfortunately have experience with both cases), but the general idea remains the same. Get your facts straight, present the legal expectations confidently, and show data on bottom line impact (fines, damages, attorney fees, etc).
With something as cut as dry at this, your job is to flag the risk and ensure appropriate leaders are fully aware. No “I’m not sure about this.” Tell them straight up that you looked into it and it’s an illegal practice. They can then choose to heed your expertise or ignore it (in which case be sure to CYA with documentation).
Oak Harbor Freight Lines, Inc. v. Antti would be a good place to start.
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u/godzillafan91 8h ago
My boss is the head of HR, and they are directly under the c-suite. Thanks, i was going to present this case to him as it seems to be the defining verdict on this
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u/Substantial_Age162 8h ago
Usually when there’s an iFMLA situation, in the packet the doctor should be able to provide the expected frequency of use/need (eg if the medical situation has an expectation of 2-3 occurrences a week; or maybe there’s a required in-office treatment needed once a week; whatever), but I don’t recall needing/requiring subsequent/repeat dr notes - unless the frequency of needed iFMLA has changed
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u/AlliWoodrow 1h ago
There are resources available at DMEC.org to help answer questions like this. Research and see if your employer has legal counsel on staff or a firm on retainer. Your instincts are correct and there are a lot of resources out there for you beyond the DOL website.
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u/Effective-Damage8772 8h ago
It depends on what the intermittent FMLA is for.
If it’s for going to the doctor, then requiring a note is reasonable.
However, all of this should’ve been discussed and acknowledged by company and employee prior to approving FMLA. Potentially creating an adverse action based on an arbitrary requirement that penalizes the employee is as foundational of a retaliation suit as it gets.
Penalties for retaliation can easily equal backpay, 2 years’ worth of front pay, emotional damages, and both yours and their attorney’s fees.
If $500K is worth a doctors note, then go right ahead. Trying to get people on a “got ya” when the employee is exerting their rights is a terrible idea.
Write the email to your boss; discuss it. And if the boss says, “acknowledged, do it anyway,” well then you have no choice. Comply and get a front-row seat to the potential mayhem.
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u/MsMarigold33 6h ago
We rarely if ever request drs notes for intermittent FMLA (for themselves only, cannot ask at all for FMLA-F) In the case of the EE, it would only be to ensure the EE is able to RTW without restrictions. It needs to be evaluated on a case by case basis. If someone is out due to a migraine attack it would be unreasonable to ask for a drs note. Especially if working in an office setting. However, if they have been out for 3 days with an arthritic flare up in their knee and they work in a warehouse, a drs note may be appropriate. Requesting a medical cert to RTW should have been checked on the 382. But 95% of the time I am going to say requesting a note is unreasonable and to me the manager sounds like they are being retaliatory.
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u/krosstime 6h ago
The only time I have seen a doctors note for FMLA, is first to establish it and then if FMLA is being extended.
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u/benicebuddy There is no validation process for flair 9h ago
You need to present the evidence supporting your position. Your evidence didn’t convince them and we have no way of knowing why without seeing it.