It should be obvious to most that an employee seeking FMLA leave must provide some type of notice to his or her employer. The question that often arises, however, is what type of notice suffices to confer an employee with FMLA protection? The FMLA regulations themselves offer little help in answering this question. Pursuant to these regulations, a notice will confer FMLA protection if it:
- Is “sufficient” to make the employer aware that the employee needs FMLA-qualifying leave; and
- Provides the anticipated timing and duration of the leave
- First, and foremost, employers should consider being exceedingly cautious about terminating or disciplining an employee who requests time off as a result of medical illness (even where the termination or discipline is unrelated to the time off request).
- Second, if an employer receives a doctor’s note or any other information from an employee suggesting that the employee may have a medical condition, the employer should carefully consider whether the FMLA is implicated. If there is any doubt, the employer should consider sending the employee a notice of eligibility and rights under the FMLA.
- Third, employers should consider providing regular FMLA training to managers and supervisors. Untrained managers may not understand how a medical note, or for that matter, an oral notice of a serious medical condition, may implicate the FMLA. This can result in a very expensive FMLA interference of retaliation claim.
- Fourth, employers should consider developing and communicating a formal policy regarding leave requests (which may include a call-in policy for employees who are on leave). The policy should not only explain FMLA rights and responsibilities (which the DOL requires covered-employers to provide anyways), but it should also specify how the employer will implement its FMLA policy.