In Bailey v. Miltope Corp., No. 2:05-cv-1061-MEF (WO), 2007 U.S. Dist. LEXIS 1760 (M.D.Ala. Jan. 8, 2007), the court found that the employee failed to satisfy the FMLA's notice requirements because the employee did not include the duration of his requested leave as part of his request for leave. The court found that the leave was foreseeable. The court went on to find, however, that an employer may only waive the notice requirement or delay the leave until thirty days after notice was given where the employee fails to provide timely notice of the need for FMLA leave. The statute and regulations, the court found, "do not permit an employer to terminate an employee merely for failure to provide timely notice."
Comment: The case has several interesting points. First, the court found the employee's notice untimely because it did not include the anticipated duration of the leave, as required by 29 CFR 825.302(c). Second, the court found that the leave was foreseeable because the employee had been considering taking FMLA leave for at least a week. The FMLA regulations do not define how "foreseeable" leave must be in order for it to be considered foreseeable rather than unforeseeable. Finally, the court's decision confirms that denial of leave or disciplinary action is an inappropriate response to an employee's untimely request for FMLA leave. Rather, the FMLA permits employers to either grant the leave by waiving the untimeliness of notice or delay the commencement of leave for up to 30 days from the date notice was first given.
The decision is relevant to all federal sector variants of the FMLA, with one exception. Title II of the FMLA (covering civil service employees) does not require employees to include the timing and duration of leave as part of the employee's notice obligations. See 5 CFR 630.1206. As such, if the employee was covered by Title II it is doubtful that the employee's notice would considered to be defective because of the absence of information during the expected duration of the leave.
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