Be prepared for time estimates in FMLA certifications — even for intermittent leave
An employee requests FMLA leave for her own condition. You give her an eligibility/rights & responsibilities notice and a certification form. When you receive the certification, however, it indicates only estimates on how often the employee will need leave and how long each incident might last.
Estimates in FMLA certifications are common, despite the form generally being the source of information on which employers base a determination as to whether the absence qualifies for FMLA protection. Estimates are particularly usual and challenging when the leave is intermittent. Taking negative employment actions soon after an employee exceeds the estimated amount of absence, however, can be risky.
To illustrate
Let’s look at a possible scenario.
Jo suffers from newly diagnosed depression that causes episodic flare-ups. She requests leave for her condition and is asked to provide a certification supporting the leave. The certification indicates that the estimated frequency of her flare-ups will be four episodes every six months and the duration of each episode will be two to five days.
Jo takes FMLA leave totaling eight episodes in only a few months.
The company has an attendance policy whereby if an employee exceeds ten points, the employee could be terminated. FMLA leave, however, is not included in the attendance points.
The employer might want to deny the amount of FMLA leave that exceeded the estimate, but that would be risky. If the employer did so, Jo could be subject to the attendance policy and terminated. Jo could have a valid claim that the employer violated her FMLA rights.
Instead, because the diagnosis is new, the employer can watch to see if Jo’s absences continue to reflect an excessive leave pattern. If so, the employer could ask Jo for a recertification to see if something has changed.
Analysis
Under the FMLA, employers may request recertifications when “Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications).” 825.308(c)(2)
The FMLA does not, however, define “significantly.”
If Jo were to sue, she could win. Courts have indicated that an estimate is just that; it is not an absolute or precise time limit. A court could see Jo’s absences as not out of line with the estimations on the original certification.
Arguing that Jo’s FMLA leave was limited to the precise frequency and duration stated in the certification would not likely bode well for the employer.
Key to remember: Don’t be surprised if an FMLA certification estimates an employee’s leave. Estimates are not exact, and proceeding as if they were, could land an employer in court. Be prepared to look at each situation on its own merits and to be flexible when needed. If significant changes occur, ask for a recertification.
