As part of the Family and Medical Leave Act’s medical certification process, the employee’s health care provider includes an estimate of the time the employee will need to be absent from work. Last week, the Sixth Circuit Court of Appeals reminded employers that in certain circumstances, employees' right to FMLA leave cannot be limited to that estimate.

In Jackson v. USPS, the plaintiff requested unforeseeable intermittent FMLA leave for issues relating to his sickle cell anemia. He provided a medical certification form estimating the need for two absences per month due to symptom flareups. In actuality, the employee missed more work than the estimate predicted, leading the employer to terminate his employment. He sued claiming interference with his FMLA rights, and the defendant claimed that the absences were not FMLA-protected because they exceeded the physician’s estimate.

The Sixth Circuit agreed with the plaintiff, noting that the FMLA medical certification does not place a hard cap on the amount of unforeseeable intermittent leave that can be taken. The court noted that the medical certification’s statement about the anticipated absences was an estimate, and, by definition, unforeseeable intermittent leave means that neither the employee nor their physician can accurately predict the exact amount of leave needed. The court noted that in situations where the employee requests foreseeable intermittent leave or non-intermittent FMLA leave, the employer may rely on the medical certification’s statement about the number of absences needed.

If an employee significantly exceeds the amount of intermittent leave estimated in the medical certification, the employer can request a recertification based on changed circumstances. In almost all situations, employers should notify the employee of the discrepancy between the certification and actual days absent, and request additional information before taking disciplinary action.

For more information, please contact me or your regular Parker Poe contact. Click here to subscribe to our latest alerts and insights.