When FMLA leave goes beyond doctor’s estimate

Q. An employee with asthma got medical certification for her intermittent FMLA leave. It said her expected absence frequency was three to five times per month. This month, she took six days off. Must we count the last day as intermittent leave, or can we rely on the upper estimate from her doctor? — B.L., Missouri

A. If the employee is taking time off in excess of the estimated time, you should confirm with the employee why she is actually taking off time (i.e., her illness versus another reason). However, as long as the employee is taking time off for her FMLA-qualifying illness, you always should count the actual time without regard to any prior estimates by the physician or the employee.

The actual time off (not the doctor’s estimate) is what determines how much time the employee has left under the FMLA or other leave laws or policies. That said, if the employee’s requests for time off begin to significantly exceed the time stated on her original FMLA certification, you should ask for a new certification from her physician.