If an employer is unsure whether an employee gave notice of his or her intent to take Family and Medical Leave Act (FMLA) leave, must the employer inquire further?

Author: Melissa Burdorf, XpertHR Legal Editor

Yes. An employee is not required to specifically request "FMLA leave." An employee (or the employee's family member or other designated representative) just has to give the employer verbal notice making the employer aware that the employee needs time off for an FMLA-qualifying reason (e.g., the employee is pregnant, the employee is in the hospital overnight), as well as the anticipated time of and duration of leave. Once the employee provides this information, an employer has two options. Either:

  1. Inquire further to determine if the employee is in fact seeking FMLA leave (where the request is unclear); or
  2. Provide the employee with notice of his or her FMLA rights and responsibilities and any applicable forms.

When an employer is unclear if the FMLA is in play, the employer's inquiry may include questioning the employee, asking an employee to fill out a leave request form and/or requesting a certification. Examples of acceptable questions include:

  • How long the employee will or may be absent (expected return date);
  • Whether the employee is unable to perform his or her job functions;
  • Whether the employee has seen a health care provider; and
  • The specific event or reason for the leave if the time off is for a qualifying exigency.

Employees frequently mention the need for time off to a direct supervisor, rather than to the employer representative designated to receive leave requests. Such conversations could still be considered sufficient to put the employer on notice of the employee's need for FMLA leave, as any person who acts directly or indirectly in the employer's interest is considered to be the employer. Therefore, it is critical that an employer train its supervisors to spot issues that could be considered FMLA leave requests. A simple oversight by a supervisor can cost the employer hundreds of thousands in a courtroom battle.