Chapter § 1-53 29 CFR § 825.303. Employee Notice Requirements for Unforeseeable FMLA Leave

• Jurisdiction: United States

1-53 29 CFR § 825.303. Employee Notice Requirements for Unforeseeable FMLA Leave

(a) Timing of notice. When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements applicable to such leave. See § 825.303(c). Notice may be given by the employee's spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally. For example, if an employee's child has a severe asthma attack and the employee takes the child to the emergency room, the employee would not be required to leave his or her child in order to report the absence while the child is receiving emergency treatment. However, if the child's asthma attack required only the use of an inhaler at home followed by a period of rest, the employee would be expected to call the employer promptly after ensuring the child has used the inhaler.

(b) Content of notice. An employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee's family member is under the continuing care of a health care provider; if the leave is due to a qualifying exigency, that a covered military member is on active duty or call to active duty status, that the requested leave is for one of the reasons listed in § 825.12 6(a), and the anticipated duration of the absence; or if the leave is for a family member that the condition renders the family member unable to perform daily activities or that the family member is a covered service member with a serious injury or illness; and the anticipated duration of the absence, if known. When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA. When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in "sick" without providing more information will not be considered sufficient notice to trigger an employer's obligations under the Act. The employer will be expected to obtain any additional required information through informal means. An employee has an obligation to respond to an employer's questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.

(c) Complying with employer policy. When the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require employees to call a designated number or a specific individual to request leave. However, if an employee requires emergency medical treatment, he or she would not be required to follow the call-in procedure until his or her condition is stabilized and he or she has access to, and is able to use, a phone. Similarly, in the case of an emergency requiring leave because of a FMLA-qualifying reason, written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved. If an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

1-53:1 Commentary

1-53:1.1 Specific Notice Triggers Employer's Obligations

The Fifth Circuit decided an important notice case in 2010, again stressing that specific notice, not barroom generalities, trigger an employer's FMLA obligations.

• Wilson v. Noble Drilling Servs., Inc., 405 F. App'x 909 (5th Cir. 2010) (summary judgment affirmed for employer where plaintiff in December 2007 and January 2008 told his manager that his wife was pregnant and that he "might" need leave to care for the newborn and that his mother-in-law had breast cancer and there was a "possibility" that he or his wife would be needed to care for her; in his deposition the plaintiff characterized his actions as "giving a heads up" to his manager; after informing the company of these potential FMLA occurrences, he was given a promotion and a raise; however, he was terminated shortly thereafter because he complained about the size of his raise; in affirming summary judgment, the court of appeals held that a vague "heads up" that FMLA may be needed failed to satisfy the plaintiff's notice obligations).

A case from the Northern District of Texas is in accord.

• Brown v. Atrium Windows & Doors, Inc., No. 3:2013cv04819, 2015 U.S. Dist. LEXIS 50047 (N.D. Tex. Apr. 16, 2015) (email from plaintiff to employer stating that "my mother is in the hospital and it doesn't look good" was insufficient to "reasonably apprise her employer" that the leave could potentially fall under the FMLA, relying on the Fifth Circuit opinion in Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F. App'x 312 (5th Cir. 2013); in addition, the court rejected the argument that the employer should have inquired further given the paucity of information provided in the email).

The law is well established that an employee need not invoke the FMLA by name to trigger its protections. The law is less clear on exactly what must be said to trigger FMLA rights. The Fifth Circuit and a Texas district court have addressed these issues.

• Meinelt v. P.F. Chang's China Bistro, Inc., 787 F. Supp. 2d 643 (S.D. Tex. 2011) (summary judgment denied for employer on issue of notice; plaintiff was diagnosed with a brain tumor and told his manager that he was going to need some time off for surgery and did not know when he could return to work and was allegedly told by the manager "not to worry" about leave and "to worry about himself"; court notes that these statements were sufficient notice and rejects the employer's argument that the Fifth's Circuit's decision in Wilson v. Noble Drilling Servs., Inc., 405 F. App'x 909 (5th Cir. 2010 (per curium) dictated a different result).

The Meinelt court drew a sharp distinction with the Noble Drilling Services case, noting that in Noble the plaintiff did not explicitly tell his employer that he would need leave, but only that he "might" need leave and that there was a "possibility" that such need would come to pass. He also gave a hazy, indefinite date on when such leave would commence. Consequently, the issue of sufficient notice may turn on the seriousness of the condition and the concomitant need for immediate care. In Noble, the conditions were the plaintiff's wife giving birth and his mother-in-law needing care for her cancer. While leave may have been needed for these circumstances, there is no doubt that leave was going to be needed to correct a life-threatening condition.

Analyzing an FMLA case does not lend itself to cabining the regulations from one another. They operate in conjunction with each other and need to be viewed holistically.

• Righi v. SMC Corp. of Am., 632 F.3d 404 (7th Cir. 2011) (plaintiff's mother fell ill and plaintiff returns home from a business trip to assess her condition, emailing his supervisor he needs "the next couple of days off" to make arrangements for her care, and stating that he might use vacation time or ask for "family leave act"; plaintiff then turned off his cell phone and did not respond to phone calls made to him by his supervisor, in violation of a company rule requiring employees to obtain approval for leave and an absence of two consecutive days was grounds for termination; in affirming summary judgment the appeals court rejected the district court's rationale that plaintiff disclaimed FMLA leave by phrasing his request as a possibility and relied instead upon his failure to adhere to the employer's rules and ruled that the plaintiff had responsibility to communicate how much leave he needed; in so holding court relies on 29 CFR 825.301, 302 and 303).

An important case in this regard was decided by the Second Circuit in 2017 that placed an obligation on an employer to ask questions regarding an employee's entitlement to FMLA in determining if a probable basis for leave is an actual basis for leave.

• Coutard

...