What kind of notice must an employee give to take leave under the Family and Medical Leave Act?

The Family and Medical Leave Act (FMLA) gives gives employees the right to twelve weeks of job-protected, unpaid leave in any twelve-month period for certain family and medical circumstances. This leave taken under the FMLA is referred to as FMLA leave.

Thus, an employer must give its employees leave when they request it under the FMLA. Further, an employer cannot fire an employee on FMLA leave or fire an employee because he is about to take FMLA leave.

The FMLA covers employers who have employed 50 or more employees for at least twenty weeks. Unlike with Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, employees for purposes of the FMLA are defined using the payroll method—that is, if a worker is on the payroll, he is an employee.

However, not all employees are entitled to FMLA leave. The FMLA only grants rights to those employees who work for a covered employer, who have been employed by that employer for at least twelve months, who has been employed for at least 1,250 hours of services for that employer during the previous twelve months, and who has been employed at a worksite where that employer has 50 or more employees within 75 miles of the site.

Employees are entitled to FMLA leave only under certain circumstances: the birth of a child or to care for a newborn child, the placement of a child for adoption or foster care, to care for a family member with a serious health condition, or because the employee has a serious health condition that keeps him from performing his job.

To take FMLA leave, an employee must give his employer notice of the need for leave. The notice must contain the reason for the needed leave and the anticipated timing and duration. There are no magic words that make the notice sufficient as long as it is clear to the employer that the employee is entitled to leave under the FMLA. The notice doesn’t even have to mention the FMLA for it to be sufficient. For example, simply telling an employer that you need to take additional time off because of a planned heart surgery would usually be sufficient.

The FMLA does not mandate that the notice be either verbal or written either. However, the FMLA does allow an employer to force an employee to follow the employer’s usual and customary notice requirements for requesting leave. For example, an employer can require notice in writing for foreseeable leave. However, an employer cannot deny FMLA if the employee has otherwise complied with the FMLA’s notice requirements.

Further, there is a difference between the notice required for foreseeable and unforeseeable leave. If the leave is foreseeable, an employee must give thirty days’ notice of the need for FMLA leave.

On the other hand, if the leave is unforeseeable, an employee must only give notice as soon as it is possible and practical. This notice is usually sufficient when given one to two days after the need for leave is known to the employee for unforeseen circumstances. Thus, acceptable notice can be given after the fact—that is, after some injury requiring medical leave occurs. Take, for example, an eligible employee who has a sudden stroke and is hospitalized. The employee wakes up in the hospital and notifies his employer that he will need to take FMLA leave. This notice would be sufficient under the circumstances.