Intermittent leave is a headache for most employers. So when – if ever – can you decline an employee’s intermittent leave request? Can you limit the leave to what the doctor wrote on the certification? According to the Sixth Circuit Court of Appeals, the answer, unsurprisingly, is no.
The Case: Jackson v. USPS
Let’s examine a recent case: Jackson v. USPS.
Jackson had sickle cell anemia. His doctor estimated he would need intermittent FMLA leave about twice a month for flare-ups. But when Jackson took more than two days off in one month, USPS fired him.
Jackson sued, claiming interference with his FMLA rights. The lower court sided with USPS, saying the certification capped his leave at two days per month.
The Sixth Circuit disagreed.
Medical Estimates Aren’t Limits to FMLA Leave
The court made it clear: a medical certification isn’t a limit; it’s an estimate. When symptoms are unpredictable, doctors can’t forecast the exact number of days off that will be needed. The certification simply confirms that intermittent leave will be necessary and gives employers a general idea of how often it may occur.
So, what should USPS have done if it felt Jackson was using the leave inappropriately – or for that matter, should any employer do if they suspect an employee is misusing their intermittent leave? The court noted that FMLA allows employers to request recertification. In this case, USPS didn’t do that; they just terminated Jackson. This aligns with other appellate courts and isn’t an anomaly.
The truth is, there are a variety of options that employers can consider: from recertifications to clarifications, authentications or second opinions. The best action will be unique to each situation, but understanding that there are options available is the key – particularly before rushing to disciplinary action or dismissal.
What Employers Should Remember
If your employee goes beyond their FMLA certification, here’s a few helpful reminders:
- A doctor’s estimate is just that — an estimate!
- It does not create a hard cap on leave.
- If you’re concerned, ask for recertification (or another option!). Don’t jump to discipline.
How We Can Help
There’s no magic wand, but our comprehensive reporting and analytics deliver helpful clarity. The custom-built Intermittent Trend Report designed for each of our clients can help spot patterns, decide if recertification makes sense, and explore other ways to challenge questionable certifications. For more help on managing and administering FMLA and other leaves, be sure to check out AbsenceResources.
