How must employees ask for FMLA leave?

By Richard Chapman

Q. Does an employee have to say that she wants to “take FMLA leave” in order to satisfy the requirement that she notify her employer of her “intent to take leave”? What must an employee tell an employer to preserve her right to take FMLA leave?

A. An employee is not required to refer to the FMLA to give notice of her intent to take FMLA leave.

A recent court decision says “the notice must succeed in alerting the employer to the seriousness of the health condition.” An employee who merely calls in sick without providing additional information does not provide sufficient notice.

The employee’s notification should provide the employer with notice that the employee would require an extended period of leave. Sometimes that notice may be dramatic, observable changes in an employee’s work performance or physical condition that could excuse formal notice by the employee to the employer. However, a history of calling in sick during some period of time does not do it.

Instead, one court pointedly noted: “he FMLA does not require employers to play Sherlock Holmes, scanning an employee’s work history for clues as to the undisclosed, true reason for an employee’s absence.”

It is important to document communications with employees concerning the nature and timing of their absences. An employer cannot rely on an employee’s failure to submit a form to justify a refusal to permit FMLA leave. On the other hand, maintaining complete attendance records documenting an employee’s use of personal or sick days will go a long way to dispelling an employee’s claims that an absence was FMLA-protected.