Introduction to the
Family and Medical Leave Act
Notice of
FMLA leave
There are three issues related to notice of
FMLA leave: (1) when must the employee give notice; (2) how must the employee
give notice; and (3) what information must be contained in the notice.
With respect to
when, the employee must
give at least 30 days advance notice of his or her intention to take FMLA leave when the
leave is foreseeable. See, 29 U.S.C. Section 2612(e). For example, you are scheduled for
major surgery next month or you are going to adopt a child the next month.
However, the law recognizes that the need for
family or medical leave will sometimes arise unexpectedly and the employee will not be
able to give the employer much, if any, advance notice. Therefore, if the employee cannot
give 30 days advance notice, the employee should give as much advance notice as possible.
With respect to
how, the employee can give
notice in one of the following ways:
-
in person
-
by telephone
-
by telegraph
-
by fax
-
or other electronic means
Notice of
leave may also be given by an employee's
spokesperson (for example, a spouse, adult family member or other responsible party) if
the employee is unable to do so personally.
With respect to
what
information must be
contained in the notice, the employee is not required to say any magic words. For example,
the employee does not have to say: "I need to take leave under the Family and Medical
Leave Act." But, the employee must provide the employer with enough information that
the employer should realize that the employee is entitled to take family or medical leave
in this situation.
So for example, if you tell your employer that
you need to be off for the next two weeks because your child is having surgery, the
employer should realize that this request for time off comes under the Family and Medical
Leave Act. But if you just tell your employer that you need the next two weeks off for
personal reasons, then the employer has not been given sufficient notice that you need
time off for family leave.
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Case Example
Husband tells wife's supervisor that she is
going to miss some work because she is having some tests run, but the husband deliberately
withholds the true nature of his wife's condition (that she has suffered a nervous
breakdown). Eleventh Circuit held that under these circumstances, the employee (through
her husband) did not give the employer enough information to put the employer on notice
that the wife might be entitled to FMLA leave. Gay v. Gilman Paper Co., 125 F.3d
1432 (11th Cir. 1997). |
