Take FMLA certifications seriously — the leave amount NOT (too) literally

The Sixth Circuit Court of Appeals just handed employers a reminder that the amount of leave listed on a certification under the federal Family and Medical Leave Act (FMLA) is just an estimate. If employees take significantly more leave than listed, employers should ask for a recertification, not jump to termination.

The case

Kristopher routinely had unexcused absences — some covered by the FMLA and some not. The certification indicated the frequency of his flare-ups as twice per month.

Eventually, Kristopher was issued a Last Chance Agreement (LCA), which stated that he would be fired if he continued to miss work for days not covered under the FMLA. About six months later, the employer told Kristopher that he was fired for violating the agreement, as he had taken unscheduled leave six times.

Kristopher sued, arguing that three of the unexcused leaves were FMLA-covered and therefore didn’t count as violations of the LCA.

The employer claimed that Kristopher couldn’t qualify for FMLA leave on two of the dates because that would exceed the allotted monthly time for flare-ups that the certification identified.

The court ruling

In ruling for Kristopher, the court held that an estimated number of days of intermittent FMLA leave on a medical certification form isn’t an exact limit of eligible days of leave an employee can take. In the court’s words, “...a medical certification form providing an estimate for intermittent unforeseeable leave cannot create an exact limitation of the total amount of FMLA days an employee can take.”

Kristopher’s condition involved random and unpredictable flare-ups. Therefore, the court viewed his condition as requiring intermittent, unforeseeable leave for which a hard cap can’t be provided. The nature of unpredictable symptoms tends to result in a medical certification that can’t give a clear number of days an employee would need off monthly. The listed number of days is merely an approximation or estimate.

Instead of firing Kristopher, if the employer believed he was exceeding his estimated number of unforeseeable leave days under the FMLA, it should have asked for recertification. Employers bear the burden of knowing how to deal with an incorrect or out-of-date estimate.

Jackson v. USPS, et al., Sixth Circuit Court of Appeals, No. 24-1860, August 21, 2025