Legal Memorandum: Employee's Notice of FMLA Leave

Issue: Under federal law governing the application of the Family and Medical Leave Act, when will an employee be held to have provided timely notice to make use of such leave time; will such a determination preclude summary judgment?

Area of Law: Employee Law, Litigation & Procedure
Keywords: Timely notice to employer; Family and Medical Leave Act (FMLA); Summary judgment
Jurisdiction: Federal
Cited Cases: 173 F.3d 1041; 278 F.3d 847; 16 F. Supp. 2d 1192; 40 F. Supp. 2d 1055
Cited Statutes: 29 U.S.C. § 2612(e)(2); 29 C.F.R. §§ 825.208(a), .302(b); 29 C.F.R. § 825.303(b);
Date: 03/01/2004

The question whether the employee’s notice to the employer of the need to take FMLA leave was timely is a question of fact that precludes summary judgment.  Mora v. Chem-tronics, Inc., 16 F. Supp. 2d 1192, 1216 (S.D. Cal. 1998).

“[W]hen the necessity for leave ‘is foreseeable,'” regulations require that the employee give the employer notice of the need for leave as soon “‘as is practicable.'”  Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002) (quoting 29 U.S.C. § 2612(e)(2)).  If the leave is unforeseeable, that is, if the employee does not know approximately when the required leave will begin, regulations simply require notice “‘as soon as practicable,'” which means “‘as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.'” Id. at 852 (quoting 29 C.F.R. §§ 825.208(a), .302(b)).  As applied this simply means that the employee should provide verbal notification within one or two business days of when the need for leave becomes known to the employee.  Id. (citing 29 C.F.R. § 825.303(b)).  Accord Brannon v. Oshkosh B’Gosh, Inc., 897 F. Supp. 1028, 1037-38 (M.D. Tenn. 1995).

In Brannon v. Oshkosh B’Gosh, the court denied the defendant’s motion for summary judgment and granted the plaintiff’s motion for summary judgment on the issue of liability, finding that the employer’s assessment of points for the employee’s absence and its subsequent termination of her violated […]

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