Jottings By An Employer's Lawyer

Tuesday, March 09, 2004

In Its Own Inimitable Way, 7th Cir. Clearly Articulates Notice Requirement for FMLA Leave


An employee who merely asked to be home with his pregnant wife, ultimately was terminated. The dispute was over whether he had invoked his right to an FMLA leave. In question was what the court noted was the quid pro quo for the difficulty caused the employer by unscheduled leaves, a requirement that notice be provided 30 days in advance when possible, or if 30 days notice is impossible, as soon as is practicable. In Aubochon v. Knauf Fiberglass, Gmbh (7th Cir. 3/8/04) [pdf] Judge Posner made clear what the case was about:
So that the scope of our holding is clear, we emphasize that the employee’s duty is merely to place the employer on notice of a probable basis for FMLA leave. He doesn’t have to write a brief demonstrating a legal entitlement. He just has to give the employer enough information to establish probable cause, as it were, to believe that he is entitled to FMLA leave. That is enough to trigger the employer’s duty to request such additional information from the employee’s doctor or some other reputable source as may be necessary to confirm the employee’s entitlement. 29 C.F.R. §§ 825.302(c), .303(b), .305(d); Cavin v. Honda of America Manufacturing, Inc., 346 F.3d 713, 723-24 (6th Cir. 2003). The note from Mrs. Aubuchon’s obstetrician indicating that she was having “complications” would have sufficed, despite the absence of details, had Aubuchon submitted it to Knauf before the company acted on his request for leave.

And when an employee doesn't meet that minimal straight forward test, and is absent more than allowed by the employer's rules, his termination is proper. It matters not, that with proper notice there might have been an entitlement to the leave.

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