FMLA: When Is Enough Notice Enough?

(Published August 1, 2008)

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Employees do not need to give formal notice of the need to take leave under the Family and Medical Leave Act (FMLA) to qualify for its protections. But exactly how much information is enough to put a manager on notice of an employee’s need for FMLA leave?

Knowledge Of Potential Need Is Enough

After suffering a heart attack, Rick Wilson was diagnosed with coronary artery disease. Ten years later, he underwent quintuple coronary artery bypass surgery, which resulted in a week-long hospital stay and an additional six-week absence from work. A few months later, he began experiencing heart palpitations, which prompted him to go for a coronary angiogram.

"How did your angiogram go?" Wilson’s manager, Marnie Owen, asked. "Is everything all right?"

"Apparently, I have four more blocked arteries," Wilson reported. "My cardiologist has me wearing a heart monitor for 30 days to determine whether or not I will need surgery to repair the blockages."

"Surgery?" Owen repeated. "But you just had bypass surgery a few months ago."

"Depending on the results of the medical monitoring, my doctor thinks that I might need to undergo another coronary bypass," Wilson stated.

"If that’s the case, how much time will you be out of work?" Owen questioned.

"According to my doctor, the surgery will require another six-week leave of absence," Wilson informed his manager.

But a week later — long before the 30 days were up, Owen fired Wilson for poor performance.

Wilson sued, claiming that Owen interfered with his rights under the FMLA by terminating him after she learned that he might need to have heart surgery and take six weeks of leave for recovery. Owen argued that she did not interfere with his rights because she had no notice of his intent to exercise his right to FMLA leave. Specifically, the company’s policy required employees to submit a formal written request for leave, which Wilson never did.

A district court dismissed the employee’s case, ruling that he was not entitled to FMLA benefits because he failed to submit a formal leave request as required under the company’s policy. Wilson appealed, arguing that his discussion with Owen regarding his potential need for surgery met the FMLA notice requirement. A court of appeals agreed, ruling that an employee need not make a formal request for leave to invoke the FMLA’s protections.

Said the court of appeals: The information Wilson conveyed to Owen of his potential need for surgery served as sufficient notice of his need for leave to warrant protection under the FMLA. According to FMLA regulations, verbal notification that raises an employer’s awareness of a potential FMLA leave, without an employee expressly asserting his rights or making mention of the FMLA, is appropriate notice.

FMLA Notification Lessons Learned

• The FMLA trumps company policy.  In other words, a company policy cannot require more of employees than the law does.  Under the FMLA, an employee may provide verbal notice of his/her intention to take leave, even if your company’s policy requires employees to make a formal written request.
  
  
• You need to recognize and respond to employee statements about the potential need for leave even if they are non-specific.  As this case illustrates, an employee need not say the words “Family and Medical Leave Act” to put you on notice of his need for FMLA leave.  Also, the precise dates and duration of the leave are not necessary for an employee to invoke the FMLA.  You must learn to look for implied requests for leave and other FMLA triggering events.
  
  
• It is important that you start thinking about FMLA compliance the moment an employee makes any mention of a medical condition or illness.  An employee must provide sufficient information to establish or suggest the need for FMLA leave, but what is considered “sufficient” is open to interpretation by the courts.  Even if a vague reference is not enough to trigger FMLA coverage, consider it reasonable notice that further inquiry may be warranted.

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