What kind of notice must employees provide to their employer when taking leave under the Family and Medical Leave Act? And how strictly may an employer rely on a doctor’s certification regarding the amount of FMLA leave an employee requires? A recent decision, Jackson v. United States Postal Service, from the U.S. Court of Appeals for the Sixth Circuit, provides guidance on these difficult questions.

Quick Hits

• The U.S. Court of Appeals for the Sixth Circuit’s opinion in Jackson v. United States Postal Service provides guidance to employers on FMLA notice requirements and certifications.
• Employers may wish to ensure that actual practices align with written notice procedures and enforce those procedures consistently.
• For unforeseen intermittent leave under the FMLA, a healthcare provider’s certification provides only an estimate of leave and not an absolute limit.

Background

The employee, Kristopher Jackson, suffers from sickle cell anemia, which can flare up unpredictably and cause him to miss work. Jackson’s doctor provided an FMLA certification indicating the frequency of flare-ups as twice a month. But throughout his years-long employment with the United States Postal Service (USPS), the employee consistently had attendance issues, only some of which were FMLA-covered absences. Eventually, due to his unprotected absences, the employee was placed on a last chance agreement (LCA) under which he would be discharged if he accrued more than three unexcused, non-FMLA absences within any six-month period. 

Approximately six months later, USPS discharged the employee for violating the LCA, by incurring six unexcused absences and one absence without leave (AWOL) incident. The employee challenged the employment termination as interfering with his FMLA rights, arguing that four of the absences and the AWOL incident were FMLA-covered. He claimed that his manager had incorrectly classified these incidents as “Not FMLA Protected.”

The federal district court granted summary judgment in favor of USPS, concluding that the employee was only approved for two days of FMLA leave per month (as noted on the medical certification his healthcare provider completed), and any additional leave beyond that—even if due to his sickle cell anemia—was unprotected. This appeal followed.

The Sixth Circuit’s Decision

In order to establish an FMLA interference claim, the employee must demonstrate, among other things, that he gave his employer notice of his intention to take leave and that his employer denied or interfered with his FMLA benefits. Under the FMLA, employers may require up to thirty days’ advance notice of foreseeable leave. If the leave is unforeseeable, employers may require notice to “be given as soon as practicable” and for the employee to “comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” In the current case, USPS contended that the employee failed to comply with its notice procedures but, even if he had, he had exceeded the amount of leave set forth in his FMLA certification.

The Sixth Circuit, in overturning the district court’s grant of summary judgment for USPS, highlighted a number of key points on notice requirements and medical certifications under the FMLA:

• Notice requirements must be clear and consistently enforced. USPS had implemented a written call-in system, which the employee failed to utilize for his absences. However, under Sixth Circuit precedent, adherence to the official written policy is not required “when a different unwritten custom is typically followed.” The employee offered evidence that what happened in practice differed from the written policy, and that he had followed the customary unwritten practice, at least with regard to some of the absences.
• FMLA certifications do not impose a “hard cap” on unforeseeable intermittent absences. The Sixth Circuit held that “an estimated number of days of intermittent FMLA leave on a medical certification from [sic] does not operate as an exact limit of eligible days of leave an employee can take.” By its nature, unforeseeable intermittent leave can be random and unpredictable, meaning that the certification’s “listed number of days is merely an approximation or estimate” and “not a hard bar.” In contrast, the Sixth Circuit acknowledged that a medical certification “could perhaps create a cap” for foreseeable intermittent leave.
• Employers can request recertification. At the same time, the Sixth Circuit asserted that an estimate of required leave “does not mean that the employee can ‘take leave in whatever increment he or she chooses.’” The usage must be at least somewhat consistent with the estimate. As the Sixth Circuit observed, if the employer believes that an employee is exceeding the estimated number of leave days, or if the circumstances described in the certification have changed significantly, the FMLA allows the employer to obtain a recertification.

Implications for Employers

This case offers several considerations for employers regarding FMLA notice and certification:

• Notice requirements: Employers may wish to ensure that their notice requirements are clearly communicated and consistently enforced. It may be wise to document and align any unwritten customs or practices with the official policy to avoid confusion and legal challenges.
• Flexibility with medical certifications: With regard to unforeseen intermittent leave, it may be wise to consider the number of leave days on an FMLA certification as an estimate, and not an absolute limit. This approach acknowledges the unpredictable nature of certain medical conditions.
• Employers have some recourse: Employers have the ability to confirm that leave was actually used for an FMLA-covered purpose. If an employee’s use of leave is more than slightly inconsistent with the FMLA certification or if there are significant changes in the employee’s condition, an employer may request recertification.

By understanding and applying these principles, employers can better navigate the complexities of the FMLA’s notice and leave certification requirements to minimize the risk of legal disputes.