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January 11, 2011

Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections

Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections
Source: The FMLA Blog -
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Upon learning that his wife was pregnancy and due in early 2008, Chad Wilson told his supervisor that he might need to take leave to care for his newborn if his mother-in-law was unavailable. Wilson was subsequently terminated for dismissing his supervisor's concerns about Wilson’s failure to follow the chain of command regarding a pay issue.

Wilson sued alleging that his termination was in retaliation for exercising FMLA rights. He argued that he engaged in FMLA-protected activity by requesting leave to care for his child. The FMLA provides that an employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave" [29 CFR 825.302(c)].

The Fifth Circuit found that Wilson failed to provide adequate notice of the need for FMLA leave. Wilson, the Court observed, " never informed Noble that he intended to take leave, only that he "might" need to take leave and that there was a "possibility" that he would need to take leave." The Court held that these comments were insufficient to make his employer aware that he needed FMLA-qualifying leave.

The Court also found that Wilson failed to notify his employer of the "anticipated timing and duration" of any leave. Wilson conceded that he did not get into any specifics as to who, what, when, or where of the leave. Telling his supervisor that he "might" need to take leave "early in the year after the baby was here" failed to inform the employer of the anticipated timing and duration of the leave, the Court held.

The Court held that Wilson failed to establish that his removal was in retaliation for requesting FMLA leave.

Wilson v. Noble Drilling Service, Inc., 10-20129 (5th Cir. Dec. 23, 2010)

Mr. Bosland Comments: While employees need not invoke the FMLA by name when requesting leave, they must provide their employer with sufficient information to alert the employer that FMLA leave may be needed.

Telling an employer that you "might" or "possibly" may need FMLA leave, even for an FMLA-qualifying reason, is not sufficient. To be a valid request, courts also want more specificity in terms of the timing and duration of the leave. Employees do not invoke the protections of the FMLA by telling your employer that you may need leave at unknown time in the future.

To invoke the FMLA, employees need to provide more specifics, not less, when requesting leave.

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