Do you know FMLA better than a federal judge? Take this three-question quiz and find out.

We’re going to start with a brief fact pattern, and then I’ll pose the questions.

Alright, let’s see whatcha got.

FACTS:

An employee injured his ribs while playing with his grandchildren. Over the next two weeks, the employee and his wife called his employer to report that he would miss work. Neither mention the Family and Medical Leave Act of F-M-L-A, nor do they provide any medical paperwork. The only documentation that the employer has concerning the absences is the word “rib.” Eventually, the employee stopped calling and did not appear for work on three consecutive days. Therefore, consistent with its attendance policy, the company fired him. Eventually, the employee sues for FMLA violations.

---

Question #1:

Does the employee have to know about his FMLA rights to take FMLA leave?

This is an easy one.

The FMLA entitles an eligible employee to take up to twelve workweeks of leave when the employee has a serious health condition and can’t work.

If FMLA leave is unforeseeable, the employee must provide notice of his intent to take leave to the employer as soon as practicable under the circumstances. But, the FMLA regulations are clear that an employee does not need to be aware of his FMLA rights to invoke them: “[t]he employee need not expressly assert rights under the FMLA…but may only state that leave is needed.”

The lower court nailed this, and so should you.

The answer to Question No. 1 is no; an employee does not have to know about FMLA rights to take FMLA leave.

---

Question #2:

Does the employee have to mention the Family and Medical Leave Act (FMLA) to take FMLA leave?

Now, let’s suppose that the employee has heard of the FMLA. However, when the time comes to use it, s/he does not need to explicitly reference the Family and Medical Leave Act or even the letters F-M-L-A.

Is the employee SOL?

Let’s go back to the same section of the FMLA regulations that we referenced in Question No. 1 and fill in the ellipsis. “An employee giving notice of the need for FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice, though the employee would need to state a qualifying reason for the needed leave and otherwise satisfy the notice requirements…”

In this case, there was evidence that both the employee and his wife reported that the employee had to miss work because of a rib injury. The appellate court noted that the type of injury that the employee suffered, and the likelihood it would qualify for FMLA leave, falls somewhere on the spectrum between a “diabetic coma and merely reporting a ‘twisted knee.'”

The lower court judge correctly concluded that the employee and his wife probably did enough by talking about his ribs to put the employer on notice that he needed FMLA leave — even though neither the employee nor his wife mentioned the statute itself.

The answer to Question No. 2 is no; an employee does not have to mention the Family and Medical Leave Act (FMLA) to take FMLA leave.

---

Question #3:

Can a company fire an employee for violating its call-out rules if, earlier, the business should have (but fails to) designate the employee’s FMLA leave?

Now, this is a tough one.

Once an employer has enough information to determine whether an employee is seeking FMLA-qualifying leave, the employer needs to notify the employee whether it will designate the requested leave as FMLA leave within five business days, absent extenuating circumstances. That’s what the regulations say (here and here).

In this case, the employer did not do that.

However, the FMLA regulations are also clear that an employee’s failure to abide by an employer’s usual attendance policies may foreclose an FMLA claim. In this case, there was no dispute that the employee stopped calling and did not appear for work on three consecutive days. Thus, the company fired him consistent with its attendance policy.

But, did the employer’s failure to designate create FMLA interference, i.e., had the company designated the leave as FMLA, he would have taken job-protected FMLA leave and wouldn’t have needed to call out?

So, was the toothpaste out of the tube already? The lower court tried to jam it back in. But, the appellate court wasn’t so sure that was possible:

[The issue] is whether an employer’s preceding violation of the FMLA is excused by an employee’s subsequent failure to comply with the regulations. That fact pattern is squarely presented here…To us, this presents an issue which merits further examination in the district court. On remand, the district court should examine whether [applicable case law] extends to this situation. It may choose to do so by ordering supplemental briefing on this issue and reconsidering or inviting new summary judgment briefing.

Thus, the answer to Question No. 3 is to be determined.

Plus, your mileage may vary depending on where you conduct business. The appellate court decision covers the Seventh Circuit only.

---

So, how did you do? Knowing you FMLA nerds, probably 3 for 3.

I’ll do a follow-up post after the lower court decides the final issue on remand.