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Employees don’t need to name FMLA when requesting time off

Determining if leave falls under the law is the employer’s responsibility

Posted March 9, 2017

When an employee puts you on “notice” of the need for leave, he or she need not mention the “FMLA” or otherwise assert their rights under the Family and Medical Leave Act. Employees simply need to provide sufficient information to show that the requested leave reasonably may be FMLA-qualifying. From there, it is the employer’s responsibility to seek additional information, if needed.

Case in point

An employee requested leave to care for his ailing grandfather, who had raised the employee from the age of four. In response to the request, the employer informed the employee that the FMLA did not apply to situations involving grandparents, and denied the leave. The employee took the leave anyway, and was terminated for job abandonment.

Under the FMLA, however, if a person stands in loco parentis to a child — takes on the day-to-day responsibilities to care for or financially support the child — he or she will be considered a parent for purposes of FMLA leave.

The employee sued, arguing that he was not informed that an in loco parentis relationship could entitle him to FMLA leave. He also argued that the employer did not inquire whether he had such a relationship with his grandfather. The employer had simply responded that the FMLA did not entitle him to leave to care for a grandparent. The employee argued that he would have told his employer about the relationship with his grandfather had he been asked or had he known of the applicable FMLA provisions. He contended that he provided the employer with sufficient information to permit it to understand that his leave request was potentially within the scope of the FMLA, and that if he did not provide sufficient information, it was only because the employer failed in its obligation to provide him with information regarding the in loco parentis provision and did not request further information from him.

The employer, on the other hand, argued that the employee failed to inform it of the in loco parentis relationship; that it was not obligated to inform employees affirmatively of the FMLA’s coverage of in loco parentis relationships. The employer felt that it was enough to post the FMLA poster. From there, it was the employee’s burden to, at the time he requested FMLA leave, to provide all the facts needed to show his entitlement to that leave.

The court found that, an employee need only to provide sufficient information indicating that he or she needs leave that reasonably may be FMLA-qualifying; he or she need not provide all details necessary to permit a definitive determination of the FMLA’s applicability at or before the time of the request. If an employee provides enough sufficient information that leave might be FMLA leave, it is incumbent upon the employer to seek additional information if needed. In short, it is the employer’s responsibility, not the employee’s, to determine whether a leave request is likely to be covered by the law. Employment lawyers familiar with the FMLA have indicated that if employers have an “inkling” that an absence might be for an FMLA-qualifying reason, they should respond effectively.

An employee simply calling in “sick” with no other information, does not, however, trigger an employer’s FMLA obligations. But what if an employee calls in sick for four days in a row? Could the absence potentially be FMLA leave? Yes, it could. If an employee requests leave to care for an aunt, could the absence potentially be FMLA leave? Again, yes, it could – an aunt could have raised the employee just as easily as a grandparent. In fact, there need not be a blood or legal relationship between the employee and whoever raised him. As long as the person for whom the employee is taking leave stood in loco parentis, the leave could qualify for FMLA protections.

Therefore, it pays to ask a few simple questions if you are unsure as to whether an employee’s absence could be FMLA leave.

Coutard v. Municipal Credit Union, Second Circuit Court of Appeals, No. 15-1113, February 9, 2017.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

Essentials of FMLAJ. J. Keller's Essentials of FMLA manual helps HR pros understand and comply with the FMLA rules, control costs related to leave taken, and minimize the law's potential disruption to their organizations' operations.


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