Let’s get back to basics: FMLA notice requirements

Employees who want to take leave under the Family and Medical Leave Act must give at least 30 days advance notice if possible and practical. If 30 days’ notice is not practicable, for example, when the employee does not know when leave will begin, or if circumstances change or there is a medical emergency, the employee must provide notice of the need for leave as soon as possible and practical.

The employer can deny the leave if the employee does not satisfy the FMLA’s notice requirements.

I’ll give you an example from a recent Third Circuit opinion. It involves an employee who had already taken approved FMLA leave more than a dozen times to receive infertility treatments and other medical care.

On Monday, June 5, 2017, she texted her direct supervisor and told him that her embryo transfer procedure was scheduled for Saturday, June 10. The next day, she met her supervisor and asked if she could take two weeks off from work following her embryo transfer procedure. The supervisor responded that he “needed [her] in the office” on those dates because two other employees would be out on scheduled vacations. However, he did say that the employee could submit a doctor’s note to HR if she needed to take medical leave. However, the employee never did so.

On June 10, the employee underwent an embryo transfer and returned to work in four days. She later sued for FMLA interference, claiming that the defendant failed to provide her with two weeks of FMLA leave.

Spoiler alert: it didn’t. Here’s why.

Although the plaintiff claimed that she didn’t know the general timing of her medical procedure, it remained her burden to prove that she gave adequate notice of her intention to take leave. She didn’t provide 30 days’ notice. So, the plaintiff had to establish that she provided notice “as soon as practicable.”

Notice remains practicable so long as a plaintiff knows “approximately” when their leave must begin. Although the plaintiff didn’t know the precise procedure date, she offered no evidence suggesting that she could not have foreseen the approximate timing of her embryo transfer earlier than June 6. Thus, it was “neither clear nor obvious” to the Third Circuit that the plaintiff had established that she provided notice of her need to take leave as soon as was practicable.

Put simply, if the plaintiff does not meet the FMLA’s notice requirement, the defendant does not have to provide her FMLA leave, and there is no FMLA interference.

Your company’s mileage may vary depending on the facts and circumstances surrounding an employee’s request for FMLA-protected leave. But, Congress saw fit to include notice requirements in the FMLA and employers are allowed to (and should) enforce them.