The federal Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons, including qualifying military exigency leave. Additionally, the FMLA provides eligible workers with up to 26 weeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the servicemember’s spouse, son, daughter, parent, or next of kin.
Before taking FMLA leave, employees must provide their employer with timely and sufficient notice of their need for leave. Generally, the notice may be oral or written, but employers may require employees to comply with their usual and customary policies for requesting leave, including providing written notice. Employers can act under their internal policies if the employee fails to follow the usual rules for requesting time off, such as delaying or denying leave. However, employers are also free to waive their internal notice and policy requirements regarding leave requests.
- Content of employee notice: An employee’s first-time request for a qualifying FMLA reason does not have to specifically assert rights under the FMLA or even mention the FMLA. The notice, however, must provide sufficient information for the employer to determine whether the leave is for an FMLA qualifying reason and set forth the anticipated timing and duration of the leave if the leave is foreseeable (29 CFR § 825.302c and 303b). Once leave is approved for a qualified reason, an employee who requests additional time off for that reason may be required to specifically refer to the FMLA.
- Timing of notice for foreseeable leave: Generally, an employee must give their employer at least 30 days’ advance notice of their need for foreseeable FMLA leave, such as for planned medical treatment or the birth of a child if it is possible and practicable to give it (29 CFR § 825.302a). If an employee fails to provide at least 30 days’ advance notice and it was possible and practicable to do so, the employer may delay the start of the leave until 30 days after the employee provides the notice.
If 30 days advance notice is not possible for foreseeable leave because the situation changes or the employee does not know precisely when the leave will be needed, the employee must provide notice as soon as practicable (29 CFR § 825.302a). For qualifying military exigency leave, the employee must provide notice as soon as practicable, no matter how far in advance the leave is foreseeable (29 CFR § 825.302a).
- Timing of notice for unforeseeable leave: When the need for FMLA leave is unforeseeable, employees must provide notice as soon as practicable under the circumstances, which may differ from case to case. However, it should be practicable for employees to provide notice of unforeseeable leave within the time prescribed by the employer’s usual and customary notice requirements for other forms of leave (29 CFR §825.303a). If possible, the notice should be provided within one or two business days of learning about the need for leave.
An employee must provide their employer with adequate advance notice of their need for FMLA leave, typically 30 days for foreseeable leave and as soon as practicable for unexpected leave.
Employers need to understand that to provide proper notice for FMLA leave; the employee does not initially have to refer to the FMLA or even request time off. The employee must merely provide the employer with enough information to determine if the leave qualifies under the FMLA.
Finally, once the employee provides notice of the need for FMLA leave, the employer may follow up with additional questions if more information is required from the employee to determine if the leave is for an FMLA-qualifying reason.
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