“Beyond the Estimate” – Sixth Circuit Rules that Medical Certifications Do Not Cap Unforeseeable Intermittent FMLA Leave

1. Introduction

Kristopher Jackson, a U.S. Postal Service mail clerk suffering from sickle-cell anemia, was fired under a Last Chance Agreement (LCA) after a string of absences the employer labelled “unexcused.” The heart of the dispute was simple yet novel: can the estimated frequency of leave episodes stated on a physician’s FMLA medical certification operate as a hard numerical cap on the employee’s otherwise statutory right to unforeseeable intermittent leave?

The district court answered “yes,” held that Jackson had exhausted his two monthly days, and granted summary judgment to USPS on most counts. On 21 August 2025 the Sixth Circuit—Judges Gibbons (majority), Moore, and Murphy—disagreed in a published, precedential decision. While affirming parts of the lower court’s ruling, the panel reversed on the certification-cap issue, vacated summary judgment on several intertwined FMLA interference and retaliation claims, and remanded for further fact-finding.

2. Summary of the Judgment

• FMLA Cap Holding: An estimated number of monthly absences on a medical certification is not an absolute limit for unforeseeable intermittent leave. Employers who believe the estimate is being exceeded must seek recertification; they may not simply deny additional leave or discipline the employee.
• Notice Requirement Applied: The court distinguished foreseeable from unforeseeable leave, applied different notice rules, and affirmed summary judgment for one scheduled doctor visit (Dec 26, 2018) where 30-day/as-soon-as-practicable notice was lacking.
• LCA-Based Termination: Because the cap error infected the tally of “strikes,” the panel vacated summary judgment on whether Jackson truly violated the LCA.
• Rehabilitation Act Claim: Affirmed dismissal; merely taking FMLA leave did not, without more, request a reasonable accommodation.
• Forfeiture & Honest Belief: The panel held Jackson did not forfeit the cap argument, and the “honest belief” rule could not rescue USPS at the summary-judgment stage.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

a) Interference & Retaliation Framework

• Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007) – foundational split between “interference/entitlement” and “retaliation/discrimination” theories; structure adopted here.
• Wallace v. FedEx Corp., 764 F.3d 571 (6th Cir. 2014) – five-part prima-facie test for interference claims applied verbatim.

b) Notice & Custom

• Festerman v. County of Wayne, 611 F. App’x 310 (6th Cir. 2015) – employer custom can modify formal policy; cited to support Jackson’s use of Form 3971 and verbal notice.
• Render v. FCA US, LLC, 53 F.4th 905 (6th Cir. 2022) – explains foreseeability spectrum for intermittent leave; majority uses to sort Jackson’s absences.

c) Medical Certification & Estimates

• Graham v. BlueShield of Tenn., 521 F. App’x 419 (6th Cir. 2013) and Seventh Circuit’s Hansen v. Fincantieri, 763 F.3d 832 (2014) – treat certification numbers as approximations; heavily relied on to reject a hard cap.
• Culpepper v. BlueCross BlueShield of Tenn., 321 F. App’x 491 (6th Cir. 2009) – distinguished: there the leave was foreseeable and finite (fertility treatments), justifying a cap.

d) Employer Recertification Duty

• 29 C.F.R. § 825.308(c)(2) – regulation allowing recertification when usage exceeds estimate; quoted as textual anchor for the new rule.
• Evans v. Cooperative Response Ctr., 996 F.3d 539 (8th Cir. 2021) – exemplifies employers seeking recertification rather than disciplining.

e) Rehabilitation Act / ADA Notice

• Marble v. Tennessee, 767 F. App’x 647 (6th Cir. 2019) & Mathis v. City of Red Bank, 657 F. App’x 557 (6th Cir. 2016) – illustrate threshold requirement that employee request an accommodation beyond generic FMLA leave.

3.2 Court’s Legal Reasoning

1. Rejecting Forfeiture. Because both parties addressed the certification-cap issue (albeit briefly) at summary-judgment and oral-argument stages, the panel found Jackson’s argument preserved.
2. Statutory Supremacy. The 12-week entitlement in 29 U.S.C. § 2612(a)(1) trumps any contrary implication from a physician’s estimate. An estimate ≠ amendment of the statute.
3. Regulatory Context. The recertification rule at § 825.308 demonstrates Congress/DoL anticipated variance from the estimate; therefore employers must seek clarification, not punish.
4. Foreseeable vs Unforeseeable Distinction. Where leave is planned (e.g., surgery), a certification may effectively define the finite schedule. Unplanned flare-ups, by contrast, are inherently uncertain; imposing a cap would create “absurd results.”
5. Interaction with the LCA. Because three of the five contested absences might be FMLA-protected once the cap is lifted, USPS lacked an automatic “legitimate, non-discriminatory reason” for termination, necessitating remand.
6. No Accommodation Request. The majority held that FMLA leave, by itself, does not equate to an ADA/Rehabilitation Act accommodation request—thus distinguishing leave usage from a leave-as-accommodation framework.

3.3 Potential Impact

• Employer HR Practices. Sixth Circuit employers must now:
  • Treat certification estimates for unpredictable conditions as a planning tool—not a quota.
  • Develop prompt recertification protocols when usage trends upward.
  • Re-examine “last-chance” agreements that count absences mechanically.
• Litigation Strategy. Plaintiffs will cite Jackson to defeat summary judgment where employers deny leave solely on “over-quota” grounds.
• Judicial Guidance. District courts now have a clear roadmap:
  1. Determine foreseeability.
  2. If unforeseeable, treat certification quantity as an estimate only.
  3. Assess employer’s efforts to seek recertification before discipline.
• Inter-Circuit Dialogue. Aligns Sixth Circuit with Seventh (Hansen), deepens gap with district opinions like Taylor-Haywood (E.D. Mich.). Possible Supreme Court interest if circuit split emerges.

4. Complex Concepts Simplified

• FMLA Interference vs Retaliation.
  • Interference – denying, hindering, or counting protected leave against an employee.
  • Retaliation – adverse action (e.g., firing) because the employee used or requested leave.
• Foreseeable vs Unforeseeable Leave.
  • Foreseeable: Planned treatments; 30-day advance notice if practicable.
  • Unforeseeable: Sudden flare-ups; notice “as soon as practicable.”
• Medical Certification. Doctor-completed form verifying a serious health condition. For unpredictable illnesses it gives an estimate of frequency/duration, not a guarantee.
• Recertification. Employer’s statutory tool to verify continued need for leave if circumstances change—before disciplining.
• Last Chance Agreement (LCA). A disciplinary contract allowing an employee to avoid immediate termination but imposing strict future conditions; still subject to statutory protections (e.g., FMLA).
• Honest-Belief Rule. Defense that employer honestly, reasonably believed in the proffered nondiscriminatory reason; here unable to apply at summary judgment because factual disputes on notice remain.

5. Conclusion

Kristopher Jackson v. USPS is now the leading Sixth Circuit authority on the relationship between medical-certificate estimates and unforeseeable intermittent leave. The panel emphatically held that estimates do not curtail the statutory 12-week entitlement; employers faced with higher-than-expected absences must pursue recertification, not punishment. This clarification safeguards employees with chronic, variable conditions while providing employers a clear procedural path. On the accommodation side, the decision simultaneously reminds plaintiffs that FMLA usage alone will not satisfy the ADA/Rehabilitation-Act notice requirement. Going forward, HR departments, counsel, and trial courts in the Sixth Circuit must recalibrate policies and litigation strategies to align with this dual message: honor the full scope of unforeseeable leave, and keep the accommodation request and leave-entitlement doctrines analytically distinct.