Can we require a physician's note every time an employee misses work while taking FMLA intermittent leave?

No. An employer cannot require a physician's note every time an employee misses work while taking FMLA intermittent leave. The term “physician’s note” is not referenced in the FMLA; recertification, however, is. The employer may ask for the same information when obtaining recertification as that permitted for the original certification. The employee has the same obligations to participate and cooperate in the recertification process as in the initial certification process. As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee's absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.

According to the FMLA regulation 825.308, an employer may request recertification no more often than every 30 days and only in connection with an absence by the employee, unless the medical certification indicates that the minimum duration of the condition is more than 30 days. If the minimum duration of the certification is for longer than 30 days, an employer must wait until that minimum duration expires before requesting a recertification. Employers are always permitted to require recertification every 6 months as long as it coincides with an FMLA related absence.

There are some exceptions to this rule allowing for recertification to be requested earlier than 30 days or six months. The first exception is when the employee requests an extension of leave. If there is an adjustment to the end date of the FMLA leave, the employer can request documentation of this change from the employee's physician. The second exception is when circumstances described by the previous certification have changed significantly (e.g., the duration of the illness, the nature of the illness, complications). For example, suppose the medical certification form on file for the employee states the employee will need time off work once a week for treatment, but the employee now is requesting time off under FMLA twice a week for treatment. The current certification is not accurately reflecting the current needs of the employee, and the employer can request a recertification from a physician to verify the need for the additional treatment each week.

The third exception is when the employer receives information that casts doubt upon the continuing validity of the certification. This allows the employer to verify or refute evidence that an employee may be abusing his or her FMLA rights. Keep in mind that the employer needs to proceed cautiously here. This statement does not give the employer the right to request documentation every time the employee misses work, but it does allow the employer to request an update on specifically how often and for how long the employee needs time off of work for FMLA treatment.

Although your company policy cannot require employees to provide a physician’s note every time an employee misses work while taking FMLA intermittent leave, it may include a statement that the company can require recertification under specific circumstances.