Employees Need Not Expressly Request FMLA Leave

The United States District Court for the District of Maine, in Waterman v. Paul G. White Interior Solutions, has ruled that a terminated employee may continue his Family and Medical Leave Act ("FMLA") retaliation claim even though he did not expressly request leave under the statute.

Law. The law allows FMLA-eligible employees to take temporary leave for family and medical reasons, such as to care for a parent who has a serious health condition, without the risk of losing employment. Under FMLA, an employer may require that an employee follow its customary practices for requesting leave.

FMLA provides employees with two types of causes of action against employers. First, its "retaliation" provisions prohibit employers from discharging or discriminating against employees for "opposing any practice made unlawful" by the FMLA.  Second, the FMLA's "interference" provisions make it unlawful for any employer to interfere with,  restrain, or deny the exercise of, or the attempt to exercise, any right provided by the FMLA.

Background. In Waterman, the employee's father had been diagnosed with several serious health conditions. The employee had previously told his supervisor and two co-workers about his father's rapidly deteriorating health.

On April 8, 2018, the employee was told that his father's doctor had advised that his father would "most likely die" if he did not immediately return (to the doctor) for tests and treatment. From April 9 to April 16, the employee was absent from work to care for his father. On April 9, the employee left a voicemail with his supervisor, and on April 10, he left a voicemail with a co-owner of the company explaining his father's situation.

The employee received no response from his employer until April 16, when the owner sent him a message asking where he was. The next day, the employee responded that his father was "still pretty bad off," and in response the company terminated his employment. In turn, the employee responded by suing the company, claiming that his termination was retaliation in violation of the FMLA.

District Court. The company argued that the employee's retaliation claim should be dismissed on the basis that his leave was not protected under FMLA because he had not provided prior notice of his express intent to take FMLA leave.

The court began its analysis by noting that "when an employee seeks leave for the first time for a FMLA-qualifying event, the employee need not expressly assert rights under the FMLA or even mention FMLA." The court further observed that "employees need only notify their employers that they will be absent under circumstances which indicate that FMLA might apply, after which it becomes 'the employer's responsibility, not the employee's, to determine whether a leave request is likely to be covered by the FMLA.'"

In the instant case, the court found that the employee had adequately notified the employer of his intent to take FMLA leave by leaving voicemails with his supervisor and the company's co-owner. Accordingly, the court concluded that the employer had sufficient notice of the employee's intent to take FMLA leave. The court also found that there was a causal connection between the employee's requesting FMLA leave and his termination. Therefore, the court allowed the employee's FMLA retaliation claim to proceed.