The U.S. Sixth Circuit Court of Appeals recently ruled that an employer was overly strict in limiting unforeseeable intermittent leave under the federal Family and Medical Leave Act (FMLA) to the estimated frequency listed in an employee’s medical certification. A mail clerk had sickle cell anemia, which caused symptoms that varied in severity depending on the day. His health care provider certified that he would likely need intermittent leave two days a month for unpredictable flare-ups. His employer took that literally and considered any unscheduled absences for his condition that exceeded two days in a month to be unexcused, eventually resulting in his termination. The court explained that the estimated number of days of unforeseeable leave in a medical certification is merely an approximation, not an exact limit on how much FMLA leave an employee can take (Jackson v. United States Postal Service, 6th Cir, Aug. 2025).
Tips: This case highlights a crucial distinction: Foreseeable intermittent leave such as for scheduled treatments might allow for relying on the limits stated in a medical certification, but that’s not the case for unforeseeable leave. However, employers do have recourse. If an employee’s need for unforeseeable leave is significantly different from the estimate in the medical certification, the FMLA regulations allow you to request recertification (see the regulations at 29 CFR 825.308(c)(2)). Check out our Legal Guide, FMLA: Certification Procedures, for more information. State leave laws, the Americans with Disabilities Act (ADA), or the Pregnant Workers Fairness Act (PWFA) may also apply. Vigilant members, if you’re faced with a situation where an employee’s unscheduled leave exceeds what was authorized in a medical certification of protected leave, contact your Vigilant Law Group employment attorney for advice.
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