Legal Alert: Request for Leave to Assist with Childbirth Did Not Provide Notice of Need for FMLA Leave

Date   Nov 9, 2005
Ford & Harrison attorneys recently won an important case before the Eleventh U.S. Circuit Court of Appeals.

Ford & Harrison attorneys recently won an important case before the Eleventh U.S. Circuit Court of Appeals. The court held that an employee who did not provide sufficient notice to the employer did not trigger the protections of the Family and Medical Leave Act (FMLA). See Cruz v. Publix Super Markets, Inc. (Oct. 31, 2005). Accordingly, the employer did not violate the FMLA by discharging the employee when she failed to return to work as scheduled, following a period of unpaid leave.

In this case, the employee requested two weeks of leave for the birth of her grandchild. The company approved the request in accordance with its policy regarding unpaid leave, not under the FMLA. After learning her daughter might deliver earlier than originally anticipated, the employee requested permission to begin her leave immediately and to extend it to four weeks. The company told the employee that she could begin the previously scheduled two weeks of leave immediately, but could not take four weeks of leave.

The employee subsequently requested FMLA leave, including a note from her adult daughter's doctor stating that the daughter felt that she needed her mother's assistance during labor; however, the note did not indicate that the daughter suffered from any pregnancy-related complication. The company properly denied FMLA leave. When the employee tried to return to work four weeks later, she was informed that she had been discharged for job abandonment.

The employee then sued the company in federal court The FMLA requires covered employers to provide qualified employees with up to twelve weeks of unpaid leave during a twelve month period for, among other things, a child's serious health condition. However, if the child is 18 or older, he or she must be incapable of self-care because of a mental or physical disability.

Although an employee is not required to specifically assert the right to leave under the FMLA when making a request, the notice must be sufficient to make the employer aware that the employee needs FMLA-qualifying leave. The employer must then determine whether the leave actually qualifies for FMLA protection.

The Eleventh Circuit noted that pregnancy is not, by itself, a serious medical condition under the FMLA. Thus, an employee is not entitled to FMLA leave to care for an adult daughter merely because the daughter is pregnant, unless she is incapacitated due to pregnancy.

Here, the employee did not provide any information to the company about the daughter's alleged serious health condition, other than that she believed her daughter was going into labor, her son-in-law had broken his collarbone, and her daughter needed her help. The court held that this "notice" was insufficient to shift the burden to the company to request further information because the company could not reasonably be expected to conclude that her absence qualified for FMLA leave. Specifically, the court stated: "[u]nless the employer already knows the employee has an FMLA-approved reason for leave, the employee must communicate the reason for the leave to the employer; the employee cannot just demand leave."

Employers' Bottom Line:

This decision is good news for employers because it establishes the employee's responsibility to provide the employer with sufficient information to put the employer on notice that a request for leave may be covered by the FMLA. It also emphasizes that an employer is not required to investigate whether the leave may be covered by the FMLA unless the employee has provided some information indicating the leave may be for an FMLA-covered situation. While this decision is only binding on courts in the Eleventh Circuit (Alabama, Florida and Georgia), other courts may look to it for guidance when faced with similar facts.

If you have any questions regarding the FMLA or any other labor or employment-related issue, please contact the Ford & Harrison attorney with whom you usually work, or Ed McKenna, 813-261-7821, or Jennifer Moore, 813-261-7823, the Ford & Harrison attorneys who represented Publix in this case.