An Estimate Is Just That - The Seventh Circuit Highlights Several Important Lessons For Employers Navigating Intermittent FMLA Leave

The U.S. Court of Appeals for the Seventh Circuit recently ruled on two important intermittent Family and Medical Leave Act (FMLA) leave issues in Hansen v. Fincantieri Marine Group.1 First, the court determined that the FMLA does not require a plaintiff to present expert testimony to prove he was incapacitated for each day for which he requested FMLA leave. Second - and perhaps more important for employers - the court decided that an employer should not summarily deny intermittent FMLA leave when an eligible employee exceeds the estimated length or duration provided by a doctor in an FMLA medical certification form.

This ruling should inform employers within the Seventh Circuit regarding the appropriate response to employees whose absences exceed the estimated frequency and duration of incapacity listed on their medical certification forms. The FMLA regulations authorize an employer to request recertification at any time if "[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence ...)."2 Hansen reinforces the need for employers to seek FMLA recertification where conditions appear to have considerably changed rather than take adverse action against an employee who has exceeded his or her certified leave. Hansen further underscores the need for employers to work closely with their third-party leave administrators when making leave determinations that may lead to adverse actions.

Facts of the Case

Fincantieri Marine Group (FMG or "the employer") employed the plaintiff as a shipbuilder. The plaintiff suffered from depression, and provided medical certification to FMG from his physician, stating that the plaintiff had a condition that would cause episodic flare-ups that prevented him from performing his job functions. The doctor estimated the duration of the condition was "months," the frequency of flare-ups was four episodes every six months, and the duration of the related incapacity was two to five days.

After the plaintiff requested FMLA leave for an absence in connection with his eighth episode in a matter of about two months, the employer's third-party administrator3 (TPA) sent the plaintiff's doctor a fax, indicating his latest absence was "out of his frequency and duration. Please confirm item #7." Item #7 on the medical certification form asked about the plaintiff's need to attend follow-up appointments or work part-time or on a reduced schedule because of...