The FMLA causes confusion among both employers and employees, partly due to the notice requirements that it mandates for both employees seeking to take FMLA leave and for employers that have an employee asking to take leave for reasons that may fall under the protection provided to the employee by the FMLA. To complicate things even more for both employees and employers, new legislation and regulations affecting the FMLA became effective in January 2008 and January 2009, respectively.

This discussion will deal with the notice requirements that an eligible FMLA employee must provide to his or her employer in order to be placed on FMLA leave. This discussion assumes that the employee is an eligible employee under the FMLA and that the employer is an eligible employer under the FMLA.

Time Requirements for an Employee’s Notification of the Need for FMLA Leave

An employee’s obligation to provide notice of the need for FMLA leave differs depending upon whether the forthcoming leave is foreseeable  or unforeseeable in nature. If the leave is foreseeable, such as most leaves are for pregnancy or necessary, but not emergency surgeries, then the employee must provide the employer at least 30 days advance notice before FMLA leave is to begin. It is always a good idea for an employee with the need for foreseeable leave to consult with his or her employer before actually scheduling the medical treatment, if at all possible, so that the treatment can be scheduled for a time when it would not unduly disrupt the employer’s business and operations. If the employee fails to give 30 days notice of foreseeable leave and provides no reasonable excuse for his delay in providing notice, then the employer can delay the employee’s leave for 30 days after when notice is actually provided. This can be a risky course of action for the employer, however, because the employer must make sure that all proper notices of the employee’s right to FMLA leave were provided to the employee in order to delay the leave.

In cases of unforeseeable leave, where providing 30 days notice is not practicable, because of a lack of knowledge of approximately when the leave will be required to begin, a change of circumstances, or a medical emergency, then notice must be given by the employee as soon as practicable. For example, an employee’s health condition may require leave to begin earlier than initially anticipated before the birth of a child, such as in situations where there are unexpected complications related to a pregnancy before the child is actually due. In these situations, employees must give the employer notice of the need for leave “as soon as practicable” – clearly not a black and white guideline. Essentially, “as soon as practicable” means as soon as practical and possible, taking into account all of the surrounding facts and circumstances of the particular case and the particular employee’s condition and reason for leave. Typically, this can be accomplished where the employee provides the employer with notice of the need for leave within the same time frame as he would be required to do so under the employer’s regular guidelines for taking sick or medical leave. In the case of a medical emergency requiring leave, however, advance notice may not be required at all as it would simply be impossible to provide under emergency circumstances.

The Content of the Employee’s Notice of the Need for FMLA Leave

In addition to the time requirements, an employee must provide the employer with sufficient and proper notice of his need for FMLA leave. At a bare minimum, an employee must provide at least verbal notice sufficient to make the employer aware that the employee needs leave that would qualify as FMLA leave, and the anticipated timing and duration of the leave. Essentially, the employee must provide enough information about his need for leave and reasons for needing to take the leave to allow the employer to determine whether or not the requested leave should be classified as FMLA leave.

While the employer must provide sufficient information regarding the reason for his absence, courts have held that an employee does not have to specifically mention or reference the FMLA in connection with his request for leave or specifically state to the employer that he would like to assert his right to take FMLA leave. In other words, there are no magic words required – only that the employee provide enough information to inform the employer that the need for leave would likely qualify as FMLA leave. On the same note, an employee’s failure to comply with an employer’s formal policy (typically contained in an employee handbook), will not prevent the leave from being FMLA protected leave.

In the case of leave for an employee’s own medical condition, the employer may further inquire into the nature of the serious health condition and may even request a medical certification from the employee’s physician to support the employee’s need for leave. An employee has an obligation to respond to an employer’s questions if they are for the purpose of determining whether or not the requested leave is FMLA-qualifying.

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