BFV Perspectives, Sports Fans Guide 2 HR, | Apr 13, 2021

What “Notice” Triggers an Employee’s Need for FMLA Leave?

The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year.

To be entitled to FMLA leave, an employee must notify his or her employer as soon as possible each time FMLA leave is needed and provide the employer with enough information to determine whether the leave is FMLA-qualifying.  If the employee fails to provide sufficient notice, the leave may not be protected. Given this consequence, employers should understand what constitutes timely and sufficient “notice”.

When must “notice” be given?
To trigger leave under the FMLA, employees must comply with their employer’s usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. 

For leave that is foreseeable, employees generally must request leave 30 days in advance. When the need for leave is foreseeable less than 30 days in advance or is unforeseeable, employees must provide notice as soon as possible and practical under the circumstances – typically either the same day or the next business day.

When the employee has no reasonable excuse for not providing at least 30 days advance notice, the employer may delay the FMLA leave until 30 days after the date notice is provided.

When the employee cannot provide 30 days advance notice, but has no reasonable excuse for not providing a shorter period of advance notice, the employer may delay the FMLA leave by whatever amount of time that the employee delayed in notifying the employer.

What is sufficient “notice”?
Many employers are surprised to learn that an employee does not need to expressly assert FMLA rights or even mention the FMLA. An employee merely needs to provide the employer with enough information to reasonably determine that the FMLA may apply. 

So, what constitutes sufficient notice?  The Courts have consistently held that simply “calling in sick” by itself is not sufficient to put the employer on notice for the need for FMLA Leave.  However, when the employee provides enough information to show that the employee likely has an FMLA-qualifying condition, this will likely be enough. A few courts have suggested that noticeable behavioral changes or unusual deteriorating job performance can provide sufficient notice, especially when coupled by knowledge that an employee was suffering from some medical condition.

The Eleventh Circuit Provides some FMLA Guidance
A recent decision form the Eleventh Circuit Court of Appeals provides some guidance on what is considered sufficient notice.

In the case Ramji v. Hospital Housekeeping Systems LLC, the Court revived an employee’s FMLA claim that her employer, Hospital Housekeeping, never advised her of her rights to take unpaid leave under the FMLA following an injury. A threshold issue the Court addressed in reaching its decision was whether the employee provided sufficient notice to trigger her FMLA leave entitlement.

The court found that the employer had real-time, sufficient notice of both the employee’s need for leave and the nature of her health condition based on the following facts:

  1. Hospital Housekeeping’s FMLA administrator was present when the employee injured herself.
  2. Hospital Housekeeping’s FMLA administrator handled the employee’s workers’ compensation and workplace-injury forms.
  3. Hospital Housekeeping’s FMLA administrator personally accompanied the employee to follow-up medical appointments and the doctor-prescribed physical therapy sessions.

The court found that these facts constituted sufficient notice under the FMLA as they demonstrated that Hospital Housekeeping knew of the nature of the employee’s injury and her potential qualification for FMLA leave.

Employer takeaway
It is important that employers understand that an employee does not have to reference the FMLA or specifically request time off to trigger FMLA leave obligations. An employee is only required to provide the employer enough information to reasonably determine that the FMLA may apply.  

Once the employee provides notice of the need for leave, the employer is required to follow-up with the employee and get further information to determine whether FMLA applies.

When it comes to compliance, supervisors and managers should be trained to identify what serious health conditions might trigger FMLA leave entitlement and what information provided by employees might be sufficient to trigger notice of the need to take FMLA leave.

As always, please let me know if I can help.

BFV Perspectives, Sports Fans Guide 2 HR, | Apr 13, 2021
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.