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Employee Must Provide Adequate Notice of Need for FMLA Leave

by | Apr 12, 2024 |

The U.S. Court of Appeals for the Fifth Circuit has ruled, in Cerda v. Blue Cube Operations, that an employee was not protected by the Family and Medical Leave Act (“FMLA”) when she never gave the employer adequate notice of her need or intent to take FMLA leave.

Law. Among other things, FMLA entitles eligible employees to take up to 12 weeks’ unpaid leave to care for a seriously ill or injured spouse, child or parent. To provide this care, intermittent FMLA leave may be taken periodically and may consist of separate blocks of leave for a single illness or injury. Intermittent FMLA leave can vary in time from an hour or more to blocks lasting several weeks.

When an employee seeks leave for an FMLA-qualifying reason, the employee need not expressly assert rights under FMLA, or even mention FMLA. However, the employee must give the employer enough information for it to reasonably conclude that the employee may have experienced a FMLA-covered event.

Generally, an employee must give 30 days’ advance notice for foreseeable FMLA leave, but if this is not possible (e.g., because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency) notice must be given “as soon as practicable.”

When an employer is put on notice that an employee may need leave for an FMLA-qualified reason, the employer has an obligation to provide the employee a “Notice of Eligibility and Rights & Responsibilities under the Family and Medical Leave Act.” Once an employer has sufficient information from an employee to determine whether the absence qualifies under the FMLA, the employer must send the employee a notice to confirm or deny FMLA leave. If an employer fails to provide these forms, it risks violating FMLA.

Facts. An employee began taking extended lunch leave to care for her seriously ill father. After she had been visiting her father during her lunch breaks for several months, a supervisor suggested she ask Human Resources about her eligibility for FMLA leave to care for him.

Although she briefly mentioned her desire to explore the possibly of “getting FMLA for [her] dad”, she never actually discussed the matter with Human Resources and instead continued to exceed the time allotted for her lunch break without reporting her absences. After an extended period of time, she was terminated for earning “wages for time that she did not work.”

The employee then sued, alleging that the time she missed from work to care for her father was FMLA-protected. Specifically, she claimed that by terminating her, the employer: (1) interfered with her use of her FMLA benefits; and (2) retaliated against her for engaging in FMLA-protected activities. The lower court ruled in favor of the employer noting that there was no evidence that the employee provided notice to the employer of her need or intent to take FMLA leave. The employee appealed this adverse determination to the Fifth Circuit.

Appeals Court Decision. The Fifth Circuit agreed with the lower court that the employee’s FMLA claim was invalid because she did not give the employer adequate notice of her need or intent to take FMLA leave. “Quite simply…the employee must give his employer notice of his intention to take leave in order to be entitled to it… information imparted to the employer must be sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition…[w]hile an employer’s duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant.”

The Fifth Circuit observed that while the employer knew about the father’s condition, the employee did not express an intent or desire to take leave, let alone FMLA leave.  Accordingly, it determined that that was insufficient to put the employer on notice that the employee intended to take leave or that that leave qualified for FMLA protection.

Therefore, the Fifth Circuit dismissed the employee’s FMLA claim.