August 21, 2025
FMLA’s Bright Line Rule – Is There One?
An employee’s FMLA medical certification indicates the frequency of his sickle cell anemia flare-ups would be twice per month. When the employee’s absences exceeded that number, the employer considered the excessive absences as not FMLA-covered and fired the employee. The employee sued for FMLA interference and retaliation. The District Court found in favor of the employer, in part, and that the employee was not eligible for FMLA protection for most of the excessive absences.
On August 21st, the 6th U.S. Circuit Court of Appeals disagreed. It found the District Court erroneously found “an FMLA medical certification can create a hard cap on unforeseeable intermittent FMLA leave…an estimated number of days of intermittent FMLA leave on a medical certification [form] does not operate as an exact limit of eligible days of leave an employee can take…In reality, if the nature of the condition is unpredictable, then the intermittent leave is unforeseeable, and a medical certification estimate does not cap the number of FMLA days.”
But wait. The court also explained, “A medical certification could perhaps create a cap on the number of days of FMLA leave if the intermittent leave was foreseeable.” For example, an employee who is scheduled to undergo a medical procedure that involves a set number of days in a certain period of time is foreseeable leave. The court described the distinction between foreseeable and unforeseeable leave as “crucial.” We must “first find that the intermittent leave is foreseeable before [it is determined] that a particular number on a medical certificate creates an exact cap or limit.”
Practical Tip: When an employee’s absences exceed the number anticipated on the medical certification, engage the employee in a conversation. Are they all related to the FMLA-covered serious health condition or something else? If the former, you may ask the employee to have his or her health care provider complete an updated medical certification (recertification). If the intermittent absences are disrupting your business operations, you may also have the option to transfer the employee to another position where the absences are less disruptive. In any instance, talk to your company’s legal counsel for guidance.
