"4x per month for 1 day" is a lawsuit written in shorthand.

An employee's FMLA certification says she may need intermittent leave "4x per month for 1 day."

She's never missed more than four days in a month. But sometimes she takes two of those days consecutively.

HR reads the certification as four separate episodes, each lasting one day. The employee reads it as four total days of leave per month.

Who's right? Maybe neither — at least not conclusively.

A certification describing intermittent leave is often giving an estimate, not imposing a hard attendance cap. And when the need for leave is unforeseeable, employers should be especially careful about treating the frequency or duration listed by the doctor as an absolute limit.

The 6th Circuit recently made exactly that point in Jackson v. USPS. A medical certification estimating intermittent FMLA leave does not necessarily create a hard ceiling on the amount of protected leave an employee may take. If the actual leave materially differs from the doctor's estimate, the employer's remedy is generally to investigate through the FMLA certification process — not simply declare the excess absence(s) unprotected.

That doesn't mean employees get unlimited leave. It just means that HR has to use the proper tool.

If "4x per month for 1 day" is genuinely unclear, the employer may seek clarification of what the provider meant. Clarification is just that: understanding the meaning of an existing response. HR, a leave administrator, another management official, or a health care provider may contact the employee's provider; the employee's direct supervisor may not. And the employer cannot use clarification as a backdoor demand for medical information beyond what the FMLA permits.

The other tool is recertification.

Here's the basic framework:

1. The general rule is 30 days. An employer ordinarily may request recertification no more often than every 30 days, and only in connection with an absence. If the existing certification states that the condition will last longer than 30 days, the employer generally must wait until that minimum period expires.  


2. Six months is the outside checkpoint. Even when the certification covers a long-term or indefinite condition, the employer may request recertification every six months in connection with an absence.


3. A significant change can justify an earlier recertification. This is where our example gets interesting. The regulation itself says that if a certification predicts one-to-two-day migraine episodes and the employee's last two migraines each cause four-day absences, the increased duration may constitute a significant change permitting recertification before 30 days. Frequency, duration, severity, complications, and even certain absence patterns can matter.


4. Give the provider the actual attendance pattern. As part of a recertification, the employer may provide the health care provider with a record of the employee's absences and ask whether that pattern is consistent with the employee's serious health condition and need for leave. That's a much better question than HR deciding for itself what the certification means.


5. Give the employee enough time. The employer generally must allow at least 15 calendar days to provide the recertification, unless it is not practicable despite the employee's diligent, good-faith efforts.

Here's where HR gets itself into trouble. Suppose HR tells the employee: "Your new certification needs to say you may take up to four consecutive days, but no more than four total days per month." That's not clarification. That's HR writing the doctor's answer. Don't do that.

Instead, just give the provider the facts and ask the medical question: Is this employee's actual leave pattern consistent with the condition and the need for intermittent leave? Then let the provider answer it.

Most importantly, don't automatically discipline an employee merely because an unforeseeable absence exceeds the frequency or duration estimated on an existing certification. At least in the 6th Circuit, those estimates are not necessarily hard caps. If the pattern materially changes, use the recertification process the regulations give you.

An FMLA certification is medical information, not an attendance points chart. When the employee's actual leave stops matching the doctor's estimate, ask questions before you start issuing discipline.