The Family Medical Leave Act (“FMLA”)
“[T]o invoke the protection of the FMLA, an employee must provide notice and a qualifying reason for requesting the leave.” Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998). Employee notice must have been given “as soon as practicable under the facts and circumstances of the particular case.” 29 C.F.R. § 825.303(a). “The employee need not expressly assert rights under the FMLA or even mention the FMLA but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means.” 29 C.F.R. § 825.303(b). Under the FMLA, “[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). To succeed on such a claim, an employee needs to demonstrate that (1) he availed himself of a protected right under FMLA; (2) the employer knew that he exercised a protected right; (3) he was adversely affected by an employment decision; and (4) there was a causal connection between the exercise of the protected right and the adverse employment action. Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.1990).
Within five business days of an employee requesting FMLA leave, or when an employer is on notice of an employee’s potentially-FMLA qualifying condition, it “must notify the employee of the employee’s eligibility to take FMLA.” C.F.R. § 825.300(b)(1). Along with the eligibility notice, employers must also provide “written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.” C.F.R § 825.300(c)(1). The employer must notify the employee of the amount of leave counted against the employee’s FMLA leave entitlement. If the amount of leave needed is known at the time the employer designates the leave as FMLA—qualifying, the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice. If it is not possible to provide the hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement (such as in the case of unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted against the employee’s FMLA leave entitlement upon the request by the employee, but no more often than once in a 30–day period and only if leave was taken in that period. Ross v. Youth Consultation Serv., Inc., 2016 WL 7476352, at *3 (D.N.J. Dec. 29, 2016), citing C.F.R. § 825.300(d)(6). In short, employees are entitled to protections under the FMLA and employers must make them aware of such protections so they can meaningfully choose to exercise their FMLA rights. Id. Of course, many companies fail to make employees aware of their protections under the FMLA or provide them with eligibility.
If you are suffering from a serious health condition or need to provide care to someone suffering with a serious health condition, our law firm can help. And it is critically important that the employer not retaliate you after FMLA protected leave has been exercised. Meaning, an employee returning to work after taking leave has the right to “be restored by the employer to the position of employment held by the employee when the leave commenced” or “to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1)(A)-(B).