One time you don’t have to give FMLA notice

Under the FMLA regulations, if an employee provides enough information to show that she might be eligible for FMLA leave, then the employer must tell her about her FMLA rights. That way, the employee can formally request protected FMLA leave.

But what if the employee has already taken FMLA leave several times before? Do you still have to go through the motions of providing FMLA notice every time the employee calls off? No, according to a recent federal appeals court decision.

Recent case: Georjane worked as a Delta Airlines flight attendant. She was terminated when she tested positive for having more alcohol in her system than flight rules allow. Eventually, after undergoing alcohol treatment, she was reinstated under a last chance agreement.

Delta had a rule that required flight crew members to notify the airline five hours before reporting time if they are going to be absent. Georjane called about four hours before her scheduled shift to notify Delta that she would be absent because she felt fatigued after caring for her ill mother overnight.

She did not request FMLA leave.


Because she had missed the call-off deadline and was on a last chance agreement, the airline terminated her.

Georjane sued, claiming Delta should have informed her that she might be eligible for FMLA leave to care for her mother.

The airline’s defense was simple. It told the court that Georjane already knew how to request FMLA leave since she had used it many times before for herself when she was seeking alcohol treatment and when she had previously had to care for her parents. It told the court it should not have to provide FMLA notices every time an employee calls off.

The court agreed and dismissed Georjane’s claim. (Branham v. Delta Airlines, No. 16-4092, 10th Cir., 2017)

Final note: The court also decided Delta was within its rights to fire Georjane—even if she had been eligible for FMLA leave—because she violated the call-off rule. Employers can terminate employees who don’t follow standard call-off rules unless the employee can show that doing so was impossible due to an emergency.