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:
But what constitutes an “eligible employee?”
Under the FMLA, an eligible employee is one who:
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:
The employee must adhere to the following notice requirements:
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.