February 18, 2020

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Hair Trigger: When are Employee Notice Provisions Triggered under the FMLA?

It can be hard to know when an employee is invoking rights under the Family and Medical Leave Act (“FMLA”). Every employer wants FMLA-requested leave to come in the form of 30 days advance notice, filed in the appropriate manner pursuant to company policy. However, a triggering event for FMLA leave can come from something as simple as an employee asking for a day off for medical reasons. It’s important to understand what the FMLA requires of employers in that instance to fulfill their responsibilities.

Under the FMLA, an employer must notify the employee of her or his eligibility to take FMLA leave if the employer “acquires knowledge that the leave may be for an FMLA-qualifying reason.”[1] Did you catch that? The word “may” is the issue here. The employee doesn’t have to explicitly request the leave – the knowledge standard for the employer rests on a single word that opens the door to what amounts to making educated guesses about an employee’s need for time off.

Courts have differed on exactly how this provision applies. In the Sixth Circuit case Gipson v. Vought Aircraft Industries, an employee who had an underlying heart condition for which he had previously received FMLA leave did not invoke FMLA rights when saying he had a headache and had to go home for his medicine. In Willis v. Coca-Cola, the Fifth Circuit found that an employee who was terminated due to violating an attendance policy did not provide information sufficient to invoke FMLA leave rights when she called in sick while pregnant without informing the employer that the illness was due to the pregnancy. In the more recent case of Munoz v. Nutrisystem, Inc., however, the U.S. District Court in the Eastern District of Pennsylvania found that an employee who asked for time off because of an issue with her neck WAS entitled to the protections of FMLA. The court found that the employer was well aware of the employee’s ongoing medical issues to a prior car accident.

The takeaway here is that employers should err on the side of a caution. Employers should always give the employee the benefit of the doubt in any situation that could trigger FMLA leave rights. Notice of these rights must be provided within five business days, so employers should make this determination and provide the necessary notice as quickly as practicable.

[1] 29 CFR 825.300(b)(1)

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About this Author

Cynthia L. Effinger, Employment Attorney, McBrayer Law Firm

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation.