When an employee wants to take leave under the Family Medical Leave Act (FMLA) they are required to give their employer some sort of notice. The FMLA requires an employee provide 30 days advance notice of the need to take leave when the need is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as practicable.
The law also requires employees provide adequate information for the employer to figure out if the leave may qualify for FMLA protection. Employees must also give the anticipated timing and duration of the leave. Employers are allowed to ask for certification and periodic re-certification supporting the need for leave.
The FMLA notice requirements can become a point of contention when an employee claims they were improperly denied FMLA leave or retaliated against for taking leave. In an emergency situation an employee notifying their employer of the need for FMLA leave may not be thinking if their notice is legally sufficient.
The 5th Circuit Court of Appeals (covering Louisiana, Mississippi, and Texas) recently handed down a decision that addressed this issue. In the case Lanier v. University of Texas Southwestern Med. Center, the court looked at whether the plaintiff employee’s notice sent via text message met the FMLA notice requirements. Employee Lanier texted her supervisor that her father was in the emergency room and she couldn’t cover her scheduled on call shift. Lanier was switched to another shift. Lanier resigned later that month claiming that her employer had interfered with her FMLA rights and they were retaliating against her because she took FMLA leave to care for her father while he was in the ER.
The court looked at Lanier’s text message and ruled that it wasn’t sufficient as FMLA notice. The court felt the text only appraised Lanier’s employer of her request to be relieved of on-call duty for that evening. Even though Lanier claimed her supervisor knew that her father was over 90 and had breathing problems, the court believed “it would be unreasonable to expect [the supervisor] to know that Lanier meant to request FMLA leave based on these facts.” (Lanier v. University of Texas Southwestern Med. Center, pg. 6). The court pointed out that Lanier had successfully taken FMLA leave in the past “and was familiar with the proper way to request it, yet did not do so here.” (Id.).
This case shows that even though there is no categorical rule for the required content of FMLA notice and an employee need not use the phrase “FMLA leave”, the notice must give the employer reason to at least inquire further as to whether the leave may fall under the FMLA. The court warns employees that “the employer is not required to be clairvoyant.”(Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 980).
What does this mean for employees looking to take FMLA leave, especially in emergency situations where advanced notice is not practical? The language an employee uses to provide notice DOES seem to matter. While using the word “FMLA” is not required, it is hard for an employer to argue that they didn’t know the employee was requesting FMLA covered leave if the employee uses the word “FMLA”. The method by which notice is provided may be important. While the law does not specify that an employee provide notice using any particular method, using the method closest to the company’s stated policy as practical might help an employee’s notice to be considered legally sufficient.
When employees are trying to take FMLA covered leave giving their employer adequate notice is the first step. Giving proper, timely notice helps to make sure the employee can take their leave and return to their job without any problems.