Did That Employee Request FMLA Leave?

March 23, 2011, 2:15 PM

For the purposes of requesting Family and Medical Leave Act (FMLA) leave, is there a legal difference between the employee who tells his supervisor in passing "I am having back surgery next Monday and need time off" and the employee who delivers a letter to human resources that says "I have been diagnosed with a serious health condition and request one month of FMLA leave"? Probably not.

In general terms, the FMLA provides up to twelve weeks of leave per year for eligible employees in the event of a serious health condition of the employee or the employee's family member, the birth or adoption of a child, or certain situations related to military service. Of course, interpreting and applying the FMLA can be tricky. One common issue is determining whether or when an employee has requested FMLA leave.

Department of Labor regulations make it clear that an employee requesting FMLA leave "need not expressly assert rights under the FMLA or even mention the FMLA." In fact, if an employee provides some form of notice that the employee requires leave that may be covered by the FMLA, it is the employer's obligation to "inquire further" to "obtain the necessary details of the leave" to determine whether it qualifies as FMLA leave. 29 C.F.R. 825.302(c).

What this means is that employers may not require written notice, may not insist that requests expressly assert FMLA rights, or even deny leave requests out of hand, simply for lack of information. Instead, employers must be careful to detect and properly respond to any information that puts them on notice that FMLA leave may be appropriate. By way of example, the supervisor in the first example above should be sure that the employee having back surgery is treated as if he formally requested FMLA leave.

Departing employees can pose significant threats, so don't wait to find out after the fact that your company isn't properly protected or that your agreements are unenforceable. --David J. Sullivan