Tuesday, February 19, 2019

The FMLA does not require that an employee use magic words to request leave

According to the FMLA's regulations, "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." Courts do not interpret this burden as a heavy one. An employee need not use the letters "F-M-L-A," or any other magic words to request leave under the statute. As long as the employee provides enough information for the employer to reasonably conclude that an FMLA event described has occurred, the employee has met his or her obligation to provide notice of a request for an FMLA-qualifying leave.

What does this look like in practice? Consider the following two examples.

In Keogh v. Concentra Health Services, Inc., the 6th Circuit considered whether an employee's investigation into a possible leave of absence qualified as a request for FMLA leave. The employee, long suffering from a back injury, "mentioned the possibility" of FMLA leave to his supervisor, but characterized his actions as "investigating" whether to take FMLA leave. That investigation came on the tail end of a year of performance and attendance issues that ultimately culminated in the employee's termination.

The Court held that his "investigation" was not a sufficient request for FMLA leave triggering any protections under the Act:

Plaintiff's own testimony thwarts his FMLA claim. By his own words, plaintiff never passed the "investigating" stage regarding any FMLA request. There is no evidence in the record that plaintiff ever actually requested intermittent leave, even accepting that no specific language is necessary. Mere questions about possible leave and adjustment of working hours, without other information alerting Concentra to plaintiff's possible intent to take such leave, are insufficient.

Compare the employee's "investigation" in Keogh to the more specific request made by the plaintiff in Gill v. BH Media Group, Inc. The plaintiff had disclosed to her immediate supervisor, Celestino, that her son suffered from autism spectrum disorder, anxiety, and sleep disturbance. Over parts of two years Celestino permitted her to work at home as needed. Celestino's boss, Blum, however, ended Gill's flexibility during her son's hospitalization, during and after which she came in late several times, telling her, "[W]e do not make special accommodations at your level. There's no other employees inside this company that we currently have that we accommodate for. You are a manager and you manage other employees … you have vacation time and you have sick time." Several months later, Plaintiff needed time off her for her own foot surgery. She made the request to Celestino, who forwarded it to Blum via email. The employer never formally granted her leave, and shortly therafter included her in a reduction in force

The Court concluded that the plaintiff had provided sufficient notice of her request for FMLA leave for both her son's and her own medical condition (although she lost her case because she could not otherwise establish pretext for her inclusion in the RIF):

Plaintiff satisfied the notice requirement with respect to both her son's medical condition and her foot surgery.… [T]he record reveals that Celestino was aware of Joshua's medical history as well as Plaintiff's forthcoming foot surgery. While Publisher Blum states that he did not know Joshua's specific condition prior to the November 2015 meeting, the Court is satisfied that Plaintiff provided enough members within The Press of her situation to satisfy the liberal requirement. In addition to her sworn testimony, Plaintiff provides texts and emails that show Defendant's awareness of various procedures and medical concerns.

An employee's statements about their, or their family member's, medical issues might not actually trigger your FMLA obligations to provide leave. They should, however, trigger your obligation to contact your employment counsel to discuss whether any information the employee provided meets the FMLA's liberal notice requirement. The employee need not state much, and if you ignore the ask, you are taking a huge risk of interfering with the employee's FMLA rights.