United States District Court, D. Oregon, Portland Division
For Oak Harbor Freight Lines, Inc.: Richard C. Hunt, Banu Kite Ramachandran, Edwin A. Harnden, Barran Liebman LLP, Portland, OR.
For Chad C. Antti: Benjamin Rosenthal, Portland, OR.
For Robert S. Argyle: Joseph J. Haddad, Portland, OR.
OPINION AND ORDER ON PARTIAL SUMMARY JUDGMENT
Garr M. King, United States District 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. 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. Chad Antti, 3:12-cv-488, and in Oak Harbor v. Robert Argyle, 3:13-cv-416. 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.
I. Legal Background
The FMLA permits eligible employees to take " a total of 12 workweeks of leave during any 12-month period . . . (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1). 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. Id. at § 2612(b)(1); 29 C.F.R. § 825.202(a). 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. 29 U.S.C. § 2612(e)(2).
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. at § 2613(a). 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. at § 2613(b)(5); see also 29 C.F.R. § 825.305(c) (employee must provide a certification " if required by the employer" in accordance with regulations); § 825.306 (content of medical certification). 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 . . . and the expected duration of the intermittent leave[.]" 29 U.S.C. § 2613(b)(6). Importantly, " [i]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." 29 C.F.R. § 825.307(a).
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." 29 U.S.C. § 2613(e). 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. 29 C.F.R. § 825.308(a). 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. Id. at § 825.308(b). Regardless, " [i]n all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee." Id. 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. Id. at § 825.308(c); see also OAR 830-009-0260(9).
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." 29 C.F.R. § 825.302(a). 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." Id. When the need for leave is not foreseeable, the employee must provide notice " either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances." Id. at § 825.302(b); see also id. at § 825.303(a) (notice of unforeseeable leave may generally be practicable " within the time prescribed by the employer's usual and customary notice requirements applicable to such leave" ).
Additionally, the employer
should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken. In the case of medical conditions, the employer may find it necessary to inquire further to determine if the leave is because of a serious health condition and may request medical certification to support the need for such leave . See § 825.305. . . . An employee has an obligation to respond to an employer's questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.
Id. at § 825.302(c) (emphasis added); § 825.303(b) (employee must provide sufficient information for an employer to determine whether FMLA applies; employer expected to obtain additional information through informal means); see also OAR 839-009-0250(1)(b) (may request additional information).
[a]n employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an employer's policy to contact a specific individual . . . . Where an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied
29 C.F.R. § 825.302(d); see also OAR 839-009-0270(7) (" An employer may require an employee to follow the employer's established leave policy regarding periodic reporting to the employer of the employee's current status." ).
Finally, the regulations require intermittent leave to be " medically necessary due to a serious health condition or a serious injury or illness. An employee shall advise the employer, upon request, of the reasons why the intermittent/reduced leave schedule is necessary and of the schedule for treatment, if applicable." 29 C.F.R. § 825.302(f). The parties must work out a schedule that does not disrupt the employer's operations, subject to the health care provider's approval. Id. If an employee neglects to consult with an employer over planned medical treatment, " the employer may initiate discussions with the employee and require the employee to make such arrangements, subject to the approval of the health care provider." Id. at § 825.302(e).
To protect these rights, the FMLA makes it " unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided" in the FMLA. 29 U.S.C. § 2615(a)(1);
ORS 659A.183 (unlawful employment practice to deny family leave to an eligible employee, or retaliate or discriminate against an individual requesting leave). A violation of the FMLA or its regulations " constitute interfering with, restraining, or denying the exercise of rights provided by the Act." 29 C.F.R. § 825.220(b). In addition, an interference claim includes " not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." Id.
The Secretary of Labor is authorized to prescribe necessary regulations to carry out the FMLA. 29 U.S.C. § 2654.
II. Factual Background
Although the factual background is only peripherally relevant to what is essentially a legal question, I set forth below the context for the dispute.
A. Business and Attendance Policy
Oak Harbor is a common carrier which guarantees service within a one-hour window on a scheduled service day. In order to satisfy this guarantee in the most cost-effective way, Oak Harbor needs its employees to show up to work.
Oak Harbor's attendance policy treats any absence (or tardy), other than a previously approved vacation day or legally-protected FMLA absence, as grounds for charging an employee with an " occurrence" (or half an occurrence point). After nine months, an occurrence point (or fraction of a point) will roll off an employee's personnel record. If an employee accrues five or more occurrence points, the ...