What Types of Notice Trigger FMLA Rights?

October 11, 2010, 11:16 AM

Employers are often required to determine whether an employee is invoking his or her Family and Medical Leave Act (FMLA) rights. The law is clear than an employee need not specifically request "leave under the Family and Medical Leave Act" by name. Instead, as long as an employee provides enough information for his or her employer to reasonably conclude that leave is for an FMLA-qualifying reason, he or she has put the employer on notice that the desired leave is for FMLA purposes. A common question from employers is: "what is enough information?"

The Court of Appeals for the Sixth Circuit recently agreed with an employer who claimed the employee had not provided enough information to reasonably conclude that his desired leave was covered by FMLA. In the case of Gipson v. Vought Aircraft Industries, the employee: (i) asked for a pass to go to the First Aid Office, (ii) reported to a union officer that he was in pain and needed to go home and get his medicine or see his doctor, and (iii) was complaining of a headache. While this information was deemed insufficient in the Gipson case, employers should be cautious in these situations, as other courts have found that imprecise verbal statements can properly invoke FMLA leave rights.

The regulations (29 C.F.R. 825.302(c)) state that employees must provide notice, which may be verbal, that makes the employer aware that the employee needs FMLA qualifying leave, and that the notice must include the anticipated timing and duration of the leave. For the employee's own health condition, the employee must also convey that the serious health condition renders him or her unable to perform the functions of his or her job. Consistent with the definition of serious health condition, proper notice should also confirm that the employee is under the care of a health care provider.

These situations are best evaluated on a case-by-case basis, and employers should err on the side of caution. When in doubt, carefully consider FMLA implications before taking adverse action against the employee. --David J. Sullivan