Q. Can we require our employees to specifically request “” or “ ” in order to trigger our duty to provide them certification forms?
A. No. An employee requesting either foreseeable or unforeseeable leave under thedoes not need to expressly assert rights under the FMLA—or even mention the FMLA. It is the employer’s burden to determine whether an employee’s leave request qualifies for FMLA. The employer must ask additional questions or dig further to determine whether an employee’s request qualifies for FMLA protection.
Some courts have allowed such statements as “I’m depressed,” “My mother has been injured,” “I have chest pains” and “I need surgery” to satisfy the employee notice requirement. A simple doctor’s note also has been held to be sufficient notice. One court has held that an employer’s mere knowledge that an employee’s leave was potentially FMLA-qualifying raised an issue of fact sufficient to withstand the employer’s motion for summary judgment on the issue of notice.
Even vague assertions may be found sufficient to constitute notice under the FMLA. Employees do not need to use the words “leave” or “leave of absence” to put an employer on notice of the need for FMLA leave.
It is crucial for frontline supervisors to understand that even employees’ simple statements, such as those noted above, may trigger FMLA protections.
Supervisors also should pay special attention to requests for help, support and job changes if the employee has disclosed the existence of a serious health condition or other condition that could trigger FMLA protections.
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