Let’s talk about a bad FMLA habit that just won’t die.
Employee submits a certification. The health care provider estimates the employee will need intermittent leave two times per month.
Fast forward a few months.
The employee has a third flare-up.
And somewhere in America, an HR professional, supervisor, or leave administrator proudly announces: “Sorry. You’ve used your two days.”
Cue the FMLA lawsuit.
In a common-sense decision, Jackson v. US Postal Service, one rather influential federal appellate court tackled the limits employers sometimes try to impose on FMLA medical certifications and delivered a message that employers would be wise to hear: an estimate is not necessarily a limit. In the world of unforeseeable intermittent leave, a certification often provides a forecast of what lies ahead, not a hard cap that cuts employees off once they hit a particular number.
Here’s what happened.
Kris worked for the U.S. Postal Service and suffered from sickle cell anemia, a condition that caused unpredictable flare-ups requiring intermittent FMLA leave. His health care provider completed an FMLA certification indicating that Kris likely would need leave about two times per month.
As these stories tend to go, Kris also had plenty of non-FMLA related absences, so much so that he was operating under a Last Chance Agreement. Under that agreement, any additional unexcused absences could cost him his job. When Kris later missed work on several occasions due to his condition, USPS argued that some of those absences were not FMLA protected because he had already exhausted the two days per month reflected on his certification.
Link to An Estimate Is an Estimate An Estimate Is an Estimate
The court drew an important distinction between foreseeable intermittent leave and unforeseeable intermittent leave.
If an employee is taking leave for scheduled treatments or other predictable events, a certification may effectively define the expected amount of leave needed.
But when an employee suffers from a condition that produces unpredictable flare-ups, the certification’s frequency estimate is just that: an estimate. The court put it this way:
FMLA certification is not about establishing a hard cap, but rather it is about providing notice to employers of how unavailable their employee will be.
The court noted that the FMLA regulations specifically contemplate situations in which an employee exceeds the estimated frequency identified in a certification. When that happens, the employer’s remedy is not to automatically deny leave. Instead, the regulations allow the employer to seek recertification when circumstances change significantly.
The point is simple: employees with unpredictable conditions are not limited to whatever number happened to be written on a certification form months earlier.
Link to Why This Decision Matters Why This Decision Matters
Let’s be honest. Some HR and leave professionals quietly treat certification estimates as though they are written in stone.
Doctor says two flare-ups a month. Employee has a third flare-up?
Denied.
That approach was flatly rejected by the Court here.
The compliant approach is to remember what the certification is intended to do. It provides the employer with an estimate of likely need, not a mathematically precise prediction of future medical events. When an employee’s condition becomes more severe or the absences start exceeding what was anticipated, that’s usually a signal to consider recertification rather than to automatically conclude the employee is no longer protected.
After all, if employees could accurately predict every future flare-up, migraine, panic attack, Crohn’s episode, lupus flare, or sickle-cell crisis, we probably wouldn’t be calling those conditions “unpredictable.”
Link to Insights for Employers Insights for Employers
A few practical lessons emerge from this important decision:
Link to 1. Stop treating certification estimates as a hard ceiling. 1. Stop treating certification estimates as a hard ceiling.
For unforeseeable intermittent leave, the frequency and duration estimates are just that: estimates. If an employee exceeds them occasionally, that does not automatically strip away FMLA protection.
Link to 2. Know when recertification becomes your friend. 2. Know when recertification becomes your friend.
The Court here highlighted what the FMLA regulations already tell us: when absences begin materially exceeding the estimates in the certification, seek recertification. That’s the tool the regulations provide. Use it. If you forget how to make this work, check out one of my previous posts that outlines precisely how to handle situations where the employee exceeds frequency or duration.
Link to 3. Continue enforcing notice rules. 3. Continue enforcing notice rules.
Notably, Kris’ case is not a free pass for employees. The court sent portions of the case back to the district court specifically to determine whether Kris provided proper notice for certain absences. Notice obligations still matter. A lot.
Link to 4. Separate the leave issue from the attendance issue. 4. Separate the leave issue from the attendance issue.
Employers understandably become frustrated when attendance problems pile up. But if some of those absences may be FMLA protected, be careful about lumping everything together before determining whether the leave actually qualifies for protection.