How Does an Employer Know If an Employee Is Requesting FMLA Leave?
 
September 25, 2003
 
Michael J. "Mike" Ranallo- Chicago

Employers covered by the Family Medical Leave Act (FMLA) need to have a thorough understanding of when and how qualified employees must give notice of their intent to take FMLA leave, as well as when they need to provide such leave. This article covers the basics and shows how one court recently interpreted the notice requirements of the FMLA so as to place a great burden on employers to be forever vigilant in determining whether an employee needs leave even if he hasn’t requested it.

First, the basics.  The FMLA requires that an employee must give notice to the employer at least 30 days before taking leave when the need for the leave is foreseeable. Foreseeable reasons for a leave typically include expected births, placement for adoption or childcare, and planned medical treatment for a serious health condition of the employee or a family member. When giving notice, the employee does not have to even mention the FMLA by name. The employee merely must provide sufficient information to reasonably apprise the employer of the employee’s need to take time off because of a serious health condition. In the case of foreseeable leave, the employee also must inform the employer how long the leave will be. Many employers have policies requiring written notice of foreseeable leave. If an employee does not follow such a policy, the employer still cannot refuse to permit the employee to take FMLA leave if the employee at least gave the employer timely verbal or electronic notice.

The need for FMLA leave often is not foreseeable. Medical emergencies, for example, frequently necessitate leave. What must an employee do then? The FMLA requires that whenever the need for leave is not foreseeable, an employee should give notice to the employer as soon as practicable. Under FMLA regulations, an employee is expected to give at least verbal notice to her employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances when a longer notice period may be justifiable. When giving this notice, the employee must provide her employer with enough information to show that she needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. In giving this notice, however, the employee does not have to say that she is exercising her FMLA leave rights. In fact, the employee doesn’t even have to mention the FMLA. It’s up to the employer to inquire further of the employee, or of the employee’s family member or other responsible person if it needs more information to determine whether the employee is seeking FMLA leave. The employer also may request medical certification from a doctor or other care provider to verify the need for FMLA leave.

An employee may not learn of the need for a leave until the very moment that a medical emergency strikes. At that moment, the employee may begin taking leave either because of her own serious health condition or to care for a family member with such a condition. Only later may the employee have an opportunity to notify her employer of the need for FMLA leave. In such a case, an employer’s policy or rule requiring advance notice – either oral or in writing – will not be enforceable.

An employee must invoke his or her right to FMLA leave by giving notice to the employer, regardless of whether the need for leave is foreseeable or unforeseeable. Put differently, the employer has no affirmative obligation to grant leave to an employee absent notice or a request for leave from the employee.  But that doesn’t mean that in all cases an employer can sit back and wait until an employee gives notice before considering whether FMLA leave is involved. Illustrating this point is the recent decision in Byrne vs. Avon Products, Inc. by the U.S. Court of Appeals for the Seventh Circuit. Mr. Byrne had done his job very effectively for four years when, over the course of two or three weeks, he began reading and sleeping at work. He also left work early one day and told a co-worker that he was not feeling well and would be out the rest of the week. An Avon representative called Byrne at home and learned from a family member that he was “very sick.” On another occasion, an Avon representative spoke directly to Byrne on the telephone. Byrne mumbled some phrases but agreed to attend a meeting later that afternoon at Avon’s offices. When Byrne did not show up for this meeting, Avon fired him for missing the meeting and for sleeping on the job. Byrne later recovered from what was diagnosed as depression. He thereafter tried to return to work. When Avon would not take him back, he filed suit claiming, among other things, that Avon violated his rights under the FMLA.

Avon defended against Byrne’s FMLA claim by arguing that Byrne never gave proper notice of his need for FMLA leave. The trial court accepted this argument and awarded Avon summary judgment. The Seventh Circuit, however, decided that the case should be sent back to the trial court for a hearing on whether Avon effectively did receive sufficient notice that Byrne needed FMLA leave in light of all the surrounding circumstances. First, the Court noted that Byrne’s sudden, unusual behavior after years of consistent job performance might be enough to notify a reasonable employer that Byrne suffered from a serious health condition. Second, the Court opined that Byrne may have been mentally unable to give notice. Citing Department of Labor regulations, the Court observed that the requirement of notice is relaxed where such notice is not feasible.

The moral of the story is that employers must investigate promptly an employee’s possible need for FMLA leave where the employee sustains a serious injury, exhibits aberrant behavior, or shows signs of serious illness, after which the employee begins missing time from work. Employers should realize the employees who are or may be suffering from serious injuries or illnesses may not be able to articulate the need for FMLA leave, which means that careful investigation is that much more important. Employers also should routinely and consistently request certification from the employee’s doctor or health care provider to confirm that the employee has a serious health condition justifying FMLA leave. 

For more information, e-mail Michael Ranallo at michael.ranallo@hklaw.com, or call toll free, 1-888-688-8500.