In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances. When the need for leave is not foreseeable, the employee must provide notice either the same day or the next business day. Whether continuous or intermittent leave is at issue, the employee need only give notice one time, but the employee shall advise the employer as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.
The employee must give advance notice of foreseeable leave at least 30 days before FMLA leave is to begin, otherwise the employee must give notice as soon as practicable. An employer may request recertification in less than 30 days in the case of changed circumstances or when the employer doubts the continuing validity of the certification. Regardless, n all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee. If, however, the original certification anticipates the medical condition will last more than 30 days, the employer must wait until that minimum duration expires before requesting a recertification. OPINION AND ORDER ON PARTIAL SUMMARY JUDGMENT C.F.R. 29 1 Similar OFLA provisions are to be interpreted consistently with the FMLA to the extent possible. By regulation, an employer may request recertification no more often than every 30 days and only in connection with an absence by the employee unless an exception applies. There are statutory provisions for an employer to request second and third opinions, and to require the employee to obtain a subsequent recertification on a reasonable basis. Importantly, f an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider.
and the expected duration of the intermittent leave 29 U.S.C. Similarly, in the case of intermittent leave for a serious health condition, the certification should contain a statement of the medical necessity for the intermittent leave. § 825.305(c) (employee must provide a certification if required by the employer in accordance with regulations) § 825.306 (content of medical certification). If the employee seeks intermittent leave for planned medical treatment, the certification should state the dates on which such treatment is expected to be given and the duration of such treatment Id. Additionally, the employer may require that such a leave request be supported by a certification issued by the health care provider of the eligible employee Id. OPINION AND ORDER ON PARTIAL SUMMARY JUDGMENT § 825.202(a).1 If the intermittent leave is foreseeable based on planned medical treatment, the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the employee s health care provider. Such leave may be taken intermittently that is, in separate blocks of time due to a single qualifying reason when supported by a medical need. (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. Legal Background The FMLA permits eligible employees to take a total of 12 workweeks of leave during any 12-month period. Also pending is Chad Antti s Cross-Motion for Partial Summary Judgment against Oak Harbor moving only against Oak Harbor s claim for declaratory judgment in the lead case. Chad Antti, 3:12-cv-488, and in Oak Harbor v. Pending before me are Oak Harbor s Motion for Partial Summary Judgment, seeking judgment on its claims for declaratory relief in the lead case, Oak Harbor v. Argyle KING, Judge: These consolidated cases present an issue of first impression in this Circuit regarding an interpretation of the Family and Medical Leave Act ( FMLA ), similar provisions of the Oregon Family and Medical Leave Act ( OFLA ) and corresponding regulations. Portland, OR 97209 Attorney for Robert S. OPINION AND ORDER ON PARTIAL SUMMARY JUDGMENT Benjamin Rosenthal 1023 SW Yamhill St., Ste 200 Portland, OR 97205 Attorney for Chad C. Suite 2300 Portland, OR 97204-3159 Attorneys for Oak Harbor Freight Lines, Inc. Harnden Barran Liebman LLP 601 SW Second Ave. OPINION AND ORDER ON PARTIAL SUMMARY JUDGMENT CHAD C. 3:12-CV-00546-KI (Trailing Case) Civil Case No. UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION OAK HARBOR FREIGHT LINES, INC., Plaintiff, Civil Case No.