What notice of the need for FMLA leave does NOT look like

Posted April 12, 2024

Putting employers on notice of the need for leave under the Family and Medical Leave Act (FMLA) can take many forms. Employees don’t have to use any magical words; they just need to provide enough information. Here’s a case that illustrates what did not constitute such notice.

Employee used lunch breaks to care for her father

A few years ago, Elizabeth took FMLA leave for her own condition. When she returned to work, she told Steve, her supervisor, that she was going to visit her ailing father during her 30-minute lunch break each day to make sure he had his medicines and something to eat.

After Elizabeth had been visiting her father for several months, Steve suggested she ask HR about FMLA leave to care for him.

In passing, Elizabeth approached Michelle from HR and said she thought about possibly getting FMLA for her dad. She never discussed the matter with Michelle again, and instead continued to use her lunch breaks for his care.

Employee was paid for 99 hours that she didn’t work

Her lunch breaks, however, had been exceeding the allotted 30 minutes, and her coworkers complained. HR investigated and discovered that Elizabeth had been paid for at least 99 hours she did not work.

The company fired Elizabeth, and she sued, claiming that the time she missed from work to care for her father was protected by the FMLA.

The court held that Elizabeth did not give the company adequate notice of her need or intent to take leave — the time away from work beyond her 30-minute lunch breaks.

Employees must provide enough information

While employees don’t need to mention the FMLA, they have to give employers enough information to reasonably inform them of leave requests for a qualifying reason. Employers may be required to inquire further, but they don’t need to be clairvoyant.

Elizabeth’s brief conversation with Michelle from HR and Steve’s awareness of her father’s ailments were not enough in this case.

Cerda v. Blue Cube Operations, L.L.C., Fifth Circuit Court of Appeals, No. 23-40404, March 19, 2024.

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