Sometimes what looks clear on paper isn’t the end of the story. A recent federal appeals court decision reminds employers that a doctor’s certification can’t always be enforced as a strict limit on FMLA leave.
TL;DR: The Sixth Circuit held that a medical certification listing “2 days per month” for sickle cell flare ups was not a hard cap on FMLA leave. In the context of unpredictable intermittent leave, that number is only an approximation. Employers who believe absences exceed the certification must seek recertification, not deny leave..
You can read the full opinion here.
When “2 days a month” isn’t really two days
A postal worker with sickle cell anemia struggled with attendance issues and eventually signed a Last Chance Agreement after multiple warnings. As part of his FMLA paperwork, his doctor’s certification stated that he would need two days per month of intermittent leave due to flare ups.
When the employee exceeded that number, USPS treated the absences as unexcused and terminated him under the agreement. The district court sided with USPS, holding that the certification created a ceiling on his monthly leave.
The Sixth Circuit reversed.
The FMLA sets the floor, not the ceiling
The Family and Medical Leave Act entitles eligible employees to up to 12 weeks of unpaid, job-protected leave each year for qualifying medical conditions. Employers can ask for medical certification to confirm the need for leave, but that paperwork cannot reduce the rights the statute provides.
The Sixth Circuit made the distinction clear:
- When leave is predictable, for example when a doctor certifies six days of treatment for a scheduled procedure, that number can serve as a limit.
- When leave is unpredictable, such as flare-ups of a chronic illness, any number written on the certification is only an estimate. It cannot operate as a cap.
If the employer believes the absences exceed what the certification supports, the regulations allow the employer to request recertification, rather than denying leave outright.
The Sixth Circuit remanded the case to decide whether the employee gave sufficient notice of his absences, but it made clear that the district court erred by treating the certification number as a strict limit.
Takeaways for employers
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Certification numbers are not ceilings. Even if a doctor’s certification lists a specific number of days per month, that figure is only an approximation when the condition causes unpredictable intermittent leave.
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Recertification is the right tool. If absences consistently exceed the certification, employers should request recertification rather than deny leave.
- Circuit law is aligning. The Sixth, Seventh, and Eighth Circuits all agree that listed days on a certification don’t cap unforeseeable intermittent leave.
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Watch state law. State family and medical leave laws may impose stricter or additional requirements beyond the federal FMLA.
The bottom line
The Sixth Circuit made clear that a doctor’s FMLA certification isn’t a ceiling for unpredictable intermittent leave. Employers must treat the listed number of days as an approximation and use recertification if they believe the absences don’t match the paperwork.