by Jason R. Mau
Since 1993, the Family and Medical Leave Act (FMLA) has provided eligible employees with job security for unpaid leave related to certain family and medical issues, including serious health conditions and the care of a newborn baby, a newly placed foster child, or an adopted child. The serious health condition protections extend to employees who care for a parent, spouse, or child. The FMLA also provides protections for caring for injured military servicemembers. 
The Act provides eligible employees with 12 weeks of unpaid leave during a 12-month period (or 26 weeks to care for a covered servicemember). An employee is eligible if she has worked (1) for an employer that has at least 50 employees in a 75-mile radius for at least 12 months and (2) at least 1,250 hours in the last 12 months.
Prohibitions under the FMLA
In addition to granting employees leave, the FMLA sets forth prohibitions on employers. Employers are prohibited from interfering with employees’ exercise of FMLA rights or retaliating against employees who have exercised their FMLA rights. The Act ensures that an employee who takes leave is given the right to be restored to employment when he returns.
The FMLA states that taking leave cannot be a factor in an adverse employment action. However, that guarantee does not entitle an employee to any rights or benefits she would not have been entitled to if she had not taken FMLA leave. That means an employee cannot rely on the FMLA to overturn an adverse employment action if she would have been disciplined for a legitimate reason regardless of her need to take family or medical leave.
Notice of need for FMLA leave
Under the FMLA’s regulations, employees are required to give notice before taking leave. Notice must be given to the employer as soon as practicable, and employees must provide at least 30 days’ notice if the leave is foreseeable. The notice must comply with the employer’s usual notice and procedural requirements for requesting leave unless unusual circumstances are present. If the leave is unforeseeable, an employee’s spouse or another responsible party may provide the notice if the employee is unable to do so. At a minimum, employees must verbalize that FMLA-qualifying leave is needed and provide some indication of the anticipated timing and duration of the leave (if known).
Notice of eligibility for FMLA leave
Under the FMLA regulations, employers are obligated to provide employees with a notice of eligibility for FMLA leave. Employers are required to notify an employee of his eligibility for FMLA-protected leave within five business days of receiving sufficient notice and information from the employee. The eligibility notice must tell the employee whether he is eligible for FMLA leave, and if an employee is ineligible, the notice must provide at least one reason. The notice may be oral or written, and it can even be provided by using the WH-381 form available from the U.S. Department of Labor (DOL). By using Form WH-381, employers can meet the eligibility notice obligation if an employee’s need for leave qualifies under the FMLA.
In addition, if an employee is eligible for FMLA leave, the employer must provide written notice of his rights and responsibilities under the Act and tell him that his time off will be designated as FMLA-qualifying leave. If leave has already commenced, the notice should be mailed to the employee’s address. Failure to follow the notice requirements can be the basis for an FMLA interference suit.
To assist with the notice obligations, the DOL has given employers the authority to obtain additional information when necessary. Since the notice obligations require employees to provide notice when a serious health condition renders them unable to perform the duties of their job, they are required to provide adequate information on the condition. The regulations allow employers to require employees to provide certification to support the need for leave within five business days of a leave request (or, in unforeseen cases, within five business days of leave commencing). Once adequate information is provided, employers can issue the eligibility notice.
Employers’ additional inquiry duty
Over the years, there have been questions on whether an employee has to provide adequate information to put an employer on notice of its obligation to provide an eligibility notice. In unforeseeable circumstances, employers are often given very little information and may be unable to ascertain whether their obligation to provide an eligibility notice has been triggered. Since the regulations state that employers are expected to obtain any additional necessary information, courts have given them a duty to inquire further. The standard states that the duty to inquire further is triggered when an employee conveys information that is sufficient to apprise an employer of a potential need for FMLA leave.
Courts recognize that although employees must provide notice as soon as practicable, they do not need to expressly mention the FMLA or a need for FMLA leave as long as they state that some type of time off is needed for a qualifying reason. In that instance, an employer’s duty to inquire further would be triggered.
In FMLA interference cases, a balance has been struck between employers’ duty to inquire and employees’ obligation to provide notice to ensure that the need for leave is sufficiently communicated and that employers aren’t required to make an inquiry every time an employee calls in sick. Employers’ duty to inquire further is triggered only when an employee indicates that serious circumstances exist. In fact, the FMLA regulations require employees to first provide at least verbal notice that is sufficient to make the employer aware of the need for leave. Once an employee has indicated that serious medical or family issues exist, the employer is obligated to inquire further to help determine whether the absence qualifies for FMLA protection.
To illustrate, an employee who calls in sick or says she is unable to make it to work does not provide sufficient information that would require her employer to inquire further under the FMLA. Also, an employee who tells his employer that he is not feeling well, says he needs to go home, and asks for someone to cover his shift does not put his employer on notice of a need for FMLA leave (unless it is obvious to the employer that the circumstances are serious). General information does not suggest that an employee or a member of an employee’s family is suffering from a serious physical impairment or illness or is experiencing a period of incapacity.
If an employer is to know that a serious medical or family issue may qualify for FMLA protection, the issue must first be communicated to the employer. Employers are not expected to be clairvoyant (as one federal judge put it), and they are not expected to make an FMLA eligibility determination every time an employee calls in sick or misses work for a doctor’s appointment.
Practical application
Be aware that the DOL has created an affirmative obligation to furnish FMLA eligibility notices to employees who have stated they intend to take leave. Additionally, know that if employees have communicated circumstances that may require FMLA leave, you have a duty to inquire further and collect the information necessary to determine whether the FMLA applies. Make your supervisors aware of these obligations so they will be prepared to inquire further or consult HR if unusual circumstances are present when an employee calls in sick. Failing to do so could result in an FMLA interference claim.
In addition, be aware that the FMLA regulations obligate employees to comply with your usual notice and procedural requirements for requesting leave absent unusual circumstances. Therefore, develop a formal leave policy or add provisions to your existing policy to spell out notification obligations in emergencies. Although employees may be unable to contact you during an emergency, you should give them adequate instructions on how soon notice should be provided. Formal leave policies will inform employees of their obligation to give timely notice of their need for leave. That will help ensure that your company will be advised of any circumstances that may qualify for FMLA leave and assist in meeting the FMLA’s notice obligations.
Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A. in the firm’s Boise, Idaho, office. He concentrates his practice in the areas of commercial, real estate, employment, and construction litigation. He represents a variety of clients, including national banks and corporations, as well as local professionals, business owners, and individuals. He may be contacted a jmau@greenerlaw.com.