To perfect the right to FMLA leave an eligible employee must provide his or her employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA. In providing notice, the employee need not use any magic words. The employee does not have to expressly assert rights under the FMLA or even mention the FMLA. The critical question is how the information conveyed to the employer is reasonably interpreted.
An employee who needs medical treatment may inform his or her employer of the need for leave before scheduling treatment in order to reasonably accommodate the needs of the employer. An employee who does not cite to the FMLA or provide the exact dates or duration of the leave nonetheless may provide his or her employer with sufficient information to reasonably apprise the employer that the employee's request may be covered by the FMLA.
In Sarnowski v. Air Brooke Limousine, Inc., No. 06-2144, 2007 U.S. App. LEXIS 28668 (3d Cir. Dec. 12, 2007), the Third Circuit vacated and remanded the award of summary judgment to the employer dismissing the Sarnowski's FMLA interference claim. In that case, Sarnowski was terminated eight days after informing his supervisor that his doctor had advised him of the need to monitor his heart and the possible need for additional surgery and 6 weeks of leave. At the time, Sarnowski had only recently returned to work after missing 6 weeks of work due to quintuple coronary artery bypass surgery. The court found that the Air Brooke had sufficient notice of Sarnowski's intent to take leave to bar Air Brook from interfering with his FMLA rights.
Comment: FMLA protection can be invoked by employee notice that they may need FMLA leave at some unknown time in the future and for an unknown duration. The decision certainly can be interpreted in a way that invites employee abuse.
For example, an employee who may need intermittent leave at some unknown point in the future notifies the employer of a serious health condition in accord with Sarnowski. Three years later the employee is absent without warning. The employee claims that adequate notice of the need for leave was provided three years earlier.
Employers might argue that notice three years earlier was insufficient. Remember, Sarnowski required that the notice provide the employer with "reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA." The facts of Sarnowski suggest that a determination of the need for surgery and additional leave pending the results of further monitoring was reasonably imminent, not open-ended. Of course, one could argue the opposite; that court in Sarnowski did not place any time limit on when leave must be taken after notice is provided.
Allowing employees to request leave even though they don't know if or when it may start also burdens the employee. The FMLA places temporal limitations when an employee must request leave based on whether the need for leave is foreseeable or not. Employer's could argue that Sarnowski requires employee's to notify the employer of the need for leave even though the employees does not yet know the schedule or amount of leave needed. If the employee waits until they know their leave schedule their request for leave may be untimely. If the request is untimely, an employer may have the right to delay or deny FMLA leave.
The MSPB has applied Title I court decisions regarding employee notice of the need for FMLA leave to civil service employees covered by Title II of the FMLA.