The FMLA does not require clairvoyance


“Clairvoyance,” that’s a 10th-grade word. Let me Google it just in case.

Ok, we’re good.

We’re taught, and by “we,” I mean our managers. And by “taught,” I mean “cross our fingers that they were paying attention during training,” that an employee does not need to say the words “Family and Medical Leave Act” or even use the letters “F-M-L-A” take up to 12 weeks of job-protected leave in 12 months. An employee needs to say enough to put the employer on notice that, for example, they may have a serious health condition or need to care for a loved one in bad health.

Still, the employee needs to say something about needing leave to get it.

Case in point — this case, actually — involves an employee who took FMLA leave to care for his ill father. His leave began on May 31, and his father passed on August 26. After his father died, the employee suffered significant mental health issues and took vacation time from the end of September through mid-October. Then he turned in a doctor’s note and received unpaid leave from the end of October through mid-December. In mid-December, the company reinstated him from FMLA. (I know what you’re thinking. It was WAY more than 12 weeks of leave.)

But the employee did not return to work right away. You see, the employee was overseas at the time. Before the end of his unpaid leave, he inquired about returning to the U.S. However, he encountered visa issues. When he was scheduled to return to work, the employee couldn’t return to the U.S., and the company terminated his employment.

Then, the employee sued for FMLA interference and retaliation.

I will focus on the interference piece where discrimination does not factor into the equation. Instead, FMLA interference claims are formulaic. To hope to succeed on an FMLA interference claim, the employee needs to show that his employer denied him leave benefits after he notified his employer about his need for covered leave.

In this case, the court concluded that the defendant provided all the leave to which the plaintiff was entitled (and then some) through mid-December. And to the extent that the plaintiff claimed that the defendant fired him to avoid providing future FMLA leave, the plaintiff failed to allege that he provided notice that he needed any. Therefore, the court dismissed the FMLA interference claim.

Perhaps, when technology allows us to predict the future — lord knows the Phillies could use it with some of those bullpen coaching decisions — the FMLA notice requirements may become obsolete. For now, however, the onus is on the employee to provide notice of leave when it is foreseeable and unforeseeable.

“Doing What’s Right – Not Just What’s Legal”
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