Court reminds employers that FMLA leave amount is an estimate

Kris, an employee, suffered from sickle cell anemia, which required unforeseeable, intermittent leave under the federal Family and Medical Leave Act (FMLA). His symptoms varied in severity from day to day, but the certification indicated that Kris would need FMLA leave for his flare-ups twice per month.

Kris also had lots of unexcused absences. Because of this, the employer put Kris on a last-chance agreement (LCA), which stated that he would be fired if he had three more instances of unprotected leave.

Kris took time off while on the LCA, and the employer believed that six of those absences were unprotected. However, Kris said that four of them were for his FMLA-related condition.

About 6 months into the LCA period, the employer fired Kris for the absences that violated the LCA.

Kris sued, claiming that the employer violated his FMLA rights by firing him for time off that qualified for FMLA protections.

Part of the employer’s argument was that the certification indicated he’d need 2 days of leave per month, and Kris took 4 days in one month. But Kris had taken more than 2 days in a month in the past without repercussion.

The court disagreed with the employer’s argument about the certification. It held that an estimated number of days of intermittent FMLA leave on a medical certification doesn’t, and can’t, operate as an exact limit of eligible days of leave an employee can take for intermittent, unforeseeable leave.

Kris’s condition involved random and unpredictable flare-ups. Given the unpredictable nature of his symptoms, the listed number of days in the certification was merely an approximation or estimate, not a hard cap on leave.