Chapter 6 - § 6.9 • EMPLOYEE'S NOTICE REQUIREMENTS

• Jurisdiction: Colorado

§ 6.9 • EMPLOYEE'S NOTICE REQUIREMENTS

To invoke the protection of the FMLA, the employee need not specifically assert his or her rights under the FMLA, or even mention the FMLA. Rather, he or she may simply inform the employer that leave is needed, and the employer must then determine whether that time off is covered by the FMLA. If an employee sufficiently describes as the basis for the request for leave any circumstance identified by the FMLA, the employer is obligated to inquire further to determine if FMLA leave is being requested. 29 C.F.R. §§ 825.302(c) and 825.303(b). Tate v. Farmland Indus., Inc., 268 F.3d 989, 997 (10th Cir. 2001).

However, when an employee requests leave for a qualifying reason and the employer previously provided FMLA-protected leave for this reason, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. 29 C.F.R. § 825.303(b). An employee calling off of work "sick," without more information, is not "sufficient notice to trigger an employer's obligations under the Act." C.F.R. § 825.303(b); e.g., Spangler v. Fed. Home Loan Bank, 278 F.3d 847, 852 (8th Cir. 2002) (employee created an issue of fact because, in her calling in for time off from work, she stated because of "depression again," and employer knew employee suffered from depression and needed leave in the past for depression); cf. Paulson v. Superior Plating, Inc., 2004 U.S. Dist. LEXIS 19383, at *12-15 (D. Minn. Sep. 27, 2004) (when stating he "'needed to leave' because he was 'sick as a dog'" and that he was "very ill," employee created an issue of fact because employer knew that employee previously needed leave for asthma and that he was just returning from a two-day absence because of asthma).

The employee is obligated to answer questions from his or her employer when the employer is attempting to determine "whether an absence is potentially FMLA-qualifying" — or the employee risks losing FMLA protections. 29 C.F.R. § 825.303(b).

When the need for leave is foreseeable, the employee must give 30 days' notice. 29 U.S.C. § 2612(e)(2)(B); 29 C.F.R. § 825.302. If 30 days' notice is not practicable 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. 29 C.F.R. § 825.302(a) and (b). When scheduling medical treatment, the employee must make a reasonable effort to schedule the leave so as to avoid...