Sixth, Seventh, and Eighth Circuit Court Decisions Affect Intermittent FMLA

A recent Sixth Circuit decision held that a health care provider’s number of expected intermittent absences is not a cap on the number of absences the employer must improve.  Employees with chronic conditions who use intermittent FMLA to cover flare-ups cannot be disciplined or given an unexcused absence for a FMLA-covered absence beyond the certification’s stated number of flare-ups.

For employees with chronic conditions, he FMLA Certification of Health Care Provider asks the health care provider to certify that the employee’s serious health condition results in periods of incapacity.  The form requires the health care provider to list the frequency of the periods of incapacity over the next six months on a daily, weekly, or monthly basis.

The plaintiff in the recent Sixth Circuit case had sickle cell anemia, which caused periodic flare-ups during which he could not work.  On the certification, his health care provider indicated that flare-ups requiring the use of intermittent FMLA would occur twice monthly.

When the employee experienced more than two flare-ups in a month, the employer applied FMLA to the first two absences caused by flare-ups, but counted subsequent absences as unexcused, leading to discipline followed by termination.

The Court sided with the employee, holding that the health care certification does not create a cap or a ceiling on the number of absences covered by FMLA.  Because of the unpredictable nature of chronic conditions, the health care provider’s certification, the number of periods of incapacity can only be estimated.  The health care provider is not given an option to explain how flare-ups cannot be expected to occur at a predetermined time or on a regular schedule.  The Court held that the number requested from the health care provider was an estimate, and not a concrete amount.

If an employee has more flare-ups requiring absences than the number given on the certification, those absences are covered by FMLA.  Employers cannot discipline or deny the use of FMLA when an employee has more flare-ups than provided on the form.

If an employee’s pattern of absence seems to conflict with the health care provider’s certification, the option for the employer is to re-certify.  Employers may legally ask for a recertification from the employee’s health care provider if the actual pattern of absences begins to differ significantly from the original certification.  Recertification, not denial of FMLA, is the only path the employer has to ensure that the current pattern of absence is supported by a health care provider.