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Requiring a doctor’s note for ‘intermittent’ leave might be illegal

The federal Family and Medical Leave Act allows certain employees to take up to 12 weeks of unpaid leave for health problems, or to care for a new baby or a sick relative.

The Act also allows workers with serious medical conditions to continue working while taking small, periodic increments of “intermittent” leave. This is allowed as long as the worker provides a doctor’s certification that includes dates of expected treatment, the medical necessity of the leave, and how long the leave is expected to last.

Intermittent leave – which can last for a few hours or a day at a time – can be disruptive to an employer, so it’s understandable that a company would want to make sure that the right is not being abused. However, if employers place too many restrictions on intermittent leave, they may violate the law.

In one recent case, a shipping company in Oregon suspected that two employees might be abusing the privilege, after noticing that when the employees took intermittent leave, it was adjacent to a weekend or a holiday about 90 percent of the time. The company put a policy in place requiring employees who take intermittent leave to submit a doctor’s note for each absence. Employees didn’t actually have to see a doctor during the leave, but they needed a separate note every time they missed work.

The two employees sued for disability discrimination.

A federal court sided with the employees. According to the court, the law only requires a single doctor’s note, not a separate note for each absence. The court said Congress was very specific about this in the law, perhaps because it was concerned to protect employees’ medical privacy.

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