Certification Does Not Place a Cap on Intermittent FMLA Leave 

Takeaway: Courts have acknowledged that, in some instances, a Family and Medical Leave Act (FMLA) certification of leave can limit the amount of FMLA leave an employee may use. However, that cap does not necessarily apply to unforeseeable leave.  

The 6th U.S. Circuit Court of Appeals ruled that intermittent, unforeseeable leave was not capped at the two days per month specified by a plaintiff's nurse practitioner. 

The plaintiff was diagnosed with sickle cell anemia at birth. The symptoms of his condition varied in severity from day to day. On better days, the disease caused fatigue, pain, and numbness, but on the worst days, it caused temporary paralysis, which affected the employee's ability to engage in a variety of life tasks, including work. 

The plaintiff started working for the United States Postal Service (USPS) in November 2011. During his time at the USPS, the plaintiff had numerous attendance issues.

Toolkit: Managing Employee Attendance

In July 2018, the USPS issued a notice of removal terminating the employee’s employment, citing 17 unscheduled absences, two notices of suspension, and a prior letter of warning. The plaintiff was able to avoid termination by agreeing to a last chance agreement (LCA) with his union and the USPS. According to the LCA, the plaintiff could not have more than three unscheduled absences in any six-month period. Unscheduled absences were defined as any absence not scheduled and approved in advance of the plaintiff's reporting time. The agreement also required the plaintiff to call the USPS hotline to report any unscheduled absences and prohibited the plaintiff from having any absence without leave for the agreement's two-year life.

Form: Last Chance Disciplinary Agreement

The agreement also stated that any absences approved under the Family and Medical Leave Act (FMLA) would not be used against the plaintiff, provided that those absences met all the qualifications and documentation requirements. Both prior to and after the implementation of the LCA, the plaintiff used the FMLA to take leave due to his sickle cell anemia. The plaintiff used his FMLA certification form, in which his health care provider certified that he suffered from sickle cell anemia, among other conditions, and indicated the frequency of his flare-ups as twice per month.

Approximately six months into the LCA, the USPS notified the plaintiff that he was being terminated from his position for violating the agreement. The notice of termination indicated that the plaintiff had been on unscheduled leave six times: Dec. 26, 2018; Feb. 27, 2019; March 1, 2019; March 8, 2019; and twice on March 11, 2019. The plaintiff was also noted as "AWOL" for March 26, 2019.

The plaintiff claimed that he did not violate his LCA. He conceded that two of the four dates listed were correctly categorized as unscheduled leave: Feb. 27, 2019, and March 8, 2019. However, he contended that the other four unexcused leaves and the one AWOL instance were FMLA-covered and therefore did not count as violations of the LCA. The plaintiff sued, claiming that the USPS' decision to terminate him violated the FMLA and the Rehabilitation Act. 

The USPS moved for summary judgment, and the district court granted the motion in part, finding that the plaintiff had failed to establish a "prima facie" case that he qualified for the FMLA on all but one date, March 1, 2019. The USPS then settled all claims for that date with the plaintiff. The plaintiff appealed the case.

On appeal, the 6th Circuit reasoned that the plaintiff could assert a separate FMLA claim for each of the disputed dates for which the USPS claimed he violated the LCA. For two such days, March 11, 2019, and March 26, 2019, the district court relied upon the USPS' argument that the plaintiff's FMLA leave was capped at two days per month by his medical certification. The 6th Circuit ruled that an estimated number of days of intermittent FMLA leave on a medical certification form does not operate as an exact limit of eligible days of leave that an employee can take. It reasoned that a medical certification could possibly create a cap if the intermittent leave was foreseeable.

However, unpredictable symptoms may result in a medical certification that cannot give a clear number of days that an employee would need off monthly. The 6th Circuit found that, given the unpredictable nature of sickle cell anemia symptoms, the listed number of days was merely an approximation.

The 6th Circuit thus reversed the district court's decision that the plaintiff's medical certification barred him from taking FMLA leave on March 11, 2019, and March 26, 2019. It sent the case back to the district court to determine whether the plaintiff gave notice as soon as practicable for his FMLA leave on either day.

Jackson v. United States Postal Service, 6th Cir., No. 24-1860 (Aug. 21, 2025).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.