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Only One Notice Required for Intermittent FMLA Leave

by | Jan 19, 2023 |

The U.S. Court of Appeals for the Sixth Circuit, in Render, v. FCA US, LLC, has ruled that only one FMLA-qualified notice is required from an employee for intermittent FMLA leave.

Law. The FMLA entitles eligible employees to up to 12 weeks’ leave: (i) for one’s own serious health condition; (ii) to care for a seriously ill or injured spouse or dependent; (iii) for the birth adoption or placement of a child; or (iv) to deal with “exigencies” related to their spouse’s military deployment.

Intermittent FMLA leave may be taken periodically and may consist of separate blocks of leave for a single illness or injury. Moreover, it can vary in time from an hour to blocks lasting several weeks.

In general, an employee must provide advanced notice to his or her employer, when possible, about the need for regular or intermittent FMLA leave.  For foreseeable leave, an employee need only provide a verbal notice that makes the employer aware of the employee’s need for FMLA-qualifying leave, and the anticipated timing and duration of the leave.

Facts. An employee requested intermittent FMLA leave for recurrent depression and moderate/generalized anxiety disorder. His request included a medical certification form that said he was unable to perform “[a]ny/all duties related to [his] job during [a] flare-up of symptoms.” After the FMLA leave was approved, he called his employer on several occasions to say he would not be coming into work. However, he did not mention the reason for the absences or state that this would specifically be FMLA leave. He was later terminated by the employer for these absences and sued in federal court. The federal district court ruled in favor of the employer finding that it had not received adequate notice from the employee of the FMLA leave. In turn, the employee appealed this adverse determination to the Sixth Circuit.

Sixth Circuit. The Sixth Circuit first ruled that intermittent leave is foreseeable leave. “This may seem counterintuitive, since the point of intermittent leave is that an employee is asking for approved FMLA leave for unexpected and unpredictable absences.” But with intermittent leave, the qualifying reason is known in advance, even if it is unclear when the condition will flare up and require time off.  In this case, the employee’s depression and anxiety were known, and flare ups were foreseeable, even if he could not predict precisely when he would need to take FMLA leave.

The Sixth Circuit then ruled that, regardless of whether FMLA leave is to be continuous or intermittent, an employee need only provide notice to the employer one time for each qualifying reason. However, the employee must advise the employer as soon as practicable if dates of scheduled leave were initially unknown.  In the instant matter, the court noted that that the employee did not need to give a formal “notice” to the employer each and every time he called in to use his intermittent FMLA leave. Rather, the court explained that the employee needed only to meet the notice requirement when he first sought approval for intermittent leave for this specific medical condition and, having previously given proper notice of his FMLA qualifying reason, he merely had to advise the employer of his schedule change on days that he wanted to use his intermittent leave.

Based on the foregoing, the Sixth Circuit reversed the district court’s ruling.

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