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Legal Memorandum: Notice of the Need for FMLA Leave

Issue: What constitutes adequate notice by an employee of the need for leave under the federal Family and Medical Leave Act?

Area of Law: Employee Law
Keywords: Adequacy of notice of leave; Family and Medical Leave Act (FMLA)
Jurisdiction: Federal
Cited Cases: 278 F.3d 847; 121 F.3d 1146; 94 F. Supp. 2d 186; 897 F. Supp. 1028; 16 F. Supp. 2d 1192; 40 F. Supp. 2d 1055; 178 F.3d 1043
Cited Statutes: 29 C.F.R. § 825.303(b); 29 C.F.R. § 825.303(a)
Date: 03/01/2004

In order to invoke application of the FMLA, the employee must give the employer some notice of the need for leave that will likely qualify as FMLA leave.  Carter v. Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir. 1997).  The employee need not invoke the FMLA or state the FMLA by name in order for notice to be adequate, “‘but may only state that leave is needed.'”  Ozolins v. Northwood-Kensett Community Sch. Dist., 40 F. Supp. 2d 1055, 1063 (N.D. Iowa 1999) (quoting 29 C.F.R. § 825.303(b)).  Accord Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999); Mora v. Chem-tronics, Inc., 16 F. Supp. 2d 1192, 1209 (S.D. Cal. 1998).  “[T]he employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.”  Browning, 178 F.3d at 1049.  Whether the plaintiff’s notice of the need to take FMLA leave was adequate is generally a question of fact. Mora, 16 F. Supp. 2d at 1209. 

Thus, “for employees who make their employers aware that they or a family member suffers from a chronic illness, and subsequently call in sick because of that illness, a generalized notice may suffice.”  Mora, 16 F. Supp. 2d at 1210, 1212 (emphasis added) (employee’s telling employer that his son was HIV-positive, had a high fever, and could not be left alone […]

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