Family and Medical Leave Act: When Is Employer on Notice?

By now, almost every employer knows about—and hopefully complies with—the Family and Medical Leave Act, 29 U.S.C. §2601 (FMLA). The well-prepared employer will have a written and promulgated FMLA policy. That, however, is not enough: the FMLA places the burden on the employer to provide an employee with notice of his or her FMLA rights whenever the employer knows or should have known that the employee’s circumstances may qualify for FMLA leave. Failure to give the proper notice and/or to designate an absence as FMLA-qualifying can result in large damage awards to the affected employee.

An employer’s notice obligations for foreseeable events (e.g. an employee informs the employer that she will need surgery next month) are fairly straightforward. Oftentimes, however, the need for FMLA leave is unforeseeable and the employer must offer FMLA leave even if the employee does not request a leave but simply calls-in to inform the employer of his or her absence. This situation can arise when the employer already knows about the employee’s (or family member’s) serious health condition and such knowledge combined with the information conveyed to the employer about the instant absence, puts or should put the employer on notice that the circumstances may qualify for FMLA leave.