Estimates for Intermittent Leave Under the FMLA Are Not Ironclad

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Estimates for Intermittent Leave Under the FMLA Are Not Ironclad

When an employee requests FMLA leave, the employer may take the employee at his word and grant the request, or may request certification from the employee's physician. The certification is sufficient, if among other things, it describes the nature of the condition and its probable duration. What if the employee's leave days taken exceed the doctor's estimate of those actually needed? Can he be summarily fired?

A federal appeals court decision decided last week grappled with that issue. James Hansen was employed by Fincantieri Marine Group (FMG). He was granted intermittent FMLA leave based upon his physician's certification that he would have periodic flare-ups of depression four times every six months, with a duration of incapacity from two to five days with each episode. When the employee requested leave for the eighth time within six months, the FMG's third-party FMLA administrator sent a fax to his physician noting that the latest leave request "is out of his frequency and duration," and asking the physician to confirm the need.

Thereafter, Hansen's subsequent leave requests were rejected because the physician-certified frequency was exceeded. As such, he began to accumulate attendance points (his previous FMLA-approved absences had not been counted against him), and when he accumulated a sufficient number of attendance marks under FMG's attendance policy, he was terminated, and he filed an FMLA suit.

In completing the FMLA certification form, the physician certified that it was medically necessary for Hansen to be absent during flare-ups of his condition. The form asked for the physician's "best estimates" as to frequency or flare-ups over the next six months, based upon the patient's medical history and the physician's knowledge of the medical condition. That is, the certification form asked for an estimate and the physician gave one. This was sufficient to certify Hansen's need for intermittent leave.

The court rejected was FMG's argument that Hansen's right to intermittent leave was "limited to the precise frequency and duration stated in the certification." The certification did not explicitly certify that Hansen would not need leave beyond the estimated number of episodes, and the authorities cited by FMG "did not stand for such a sweeping proposition." Also, other courts have rejected similar arguments. "If the certified frequency and duration were limits on the employee's entitlement to leave, there would be no need to request recertification when the employee's requested leave exceeded the frequency or duration stated in the certification," the Seventh Circuit pointed out.

The court found that FMG erred in failing to give Hansen a chance to cure the arguably deficient certification before firing him once his absences exceeded the expected frequency the certification predicted. It was not entitled to deny him FMLA leave based on the perceived insufficiency. Also, the third-party administrator made a half-hearted attempt to recertify with its fax to the physician, but the attempt was improper. Under the regulations, an employer is required to give notice of a requirement for certification every time a certification is required; there is no evidence that the employee was notified when his physician was faxed. Moreover, the regulations prevent an employer from communicating directly with the employee's health care provider, so the administrator erred in contacting the physician directly. Finally, it sought to confirm the prior certification; it did not request certification for the absences that exceeded the estimated frequency and duration.

The court stated "we reject the argument that the estimates in the certification act as limitations on the frequency and duration of episodes for which an employee may be entitled to intermittent leave under the FMLA".

The takeaway: If you are granted intermittent leave under the FMLA and your physician only can estimate the time of leave you need, that estimate is not ironclad, and you may not be bound by it if you can show that additional time was needed.

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