What is FMLA?

FMLA refers to the Family and Medical Leave Act of 1993, which permits eligible employees to take 12 weeks of unpaid, job-protected leave in a 12-month period. Such employees can take leave for a variety of reasons to include:

  • The birth and care of a newborn child;
  • The placement of a child for adoption or foster care;
  • A serious health condition of the employee or the employee’s spouse, child, or parent; or
  • Any qualifying exigencies arising out of a covered military member’s covered active duty status.

But what constitutes an “eligible employee?”

Under the FMLA, an eligible employee is one who:

  • Works for an employer who has 50 or more employees, is a public agency, or is an elementary or secondary school;
  • Has worked for that employer for at least 12 months; and
  • During the 12 month period prior to the request for leave, the employee worked at least 1,250 hours for the employer.

What Notice is Required?

Both the employer and employee must satisfy various notice requirements under the FMLA.

The employer must provide the employee with the following notices:

  • General Notice;
  • Eligibility and Rights and Responsibilities Notice; and
  • Designation Notice

The employee must adhere to the following notice requirements:

  • Verbal or Written; and
  • At least 30 days advance notice, if the need for FMLA leave is foreseeable or notice as soon as possible and practicable if the need for FMLA leave is unforeseeable

Under the employee notice provision, the employee does not have to mention the FMLA at all when requesting FMLA leave. Instead, the employee simply needs to state the reason for requesting leave in a manner which allows the employer to determine whether the leave qualifies under the Act.  If the request is unclear, the employer should obtain additional information.

Can an Employee Refuse to Take FMLA Leave?

The short answer  is: Yes, in at least one jurisdiction. In Escriba v. Foster Poultry Farms, Inc., the Ninth Circuit held that an employee may affirmatively decline to take FMLA leave. Employers beware! An employee’s decision not to take FMLA leave DOES NOT mean the employee is waiving his right to FMLA leave, as stated by the Court in Hudson v. Tyson Fresh Meats, Inc.

FMLA can be confusing.  Consult with competent employment counsel when faced with an issue under the FMLA.