No FMLA Notice? It Means No FMLA Leave

By Eric B Meyer

Before going any further, allow me to wish a happy belated 20th birthday to the Family and Medical Leave Act, the FMLA.

What can I say? I plumb forgot. Next year, to celebrate the big 2-1, drinks are on me

For today, we’ll do an FMLA post in tribute.

A few weeks ago, I posted FMLA Requests: 3 Essential Factors For Every HR Pro to Remember, one of which was to have a publicized attendance rule and enforce it.

Facts of the case

That post immediately crossed my mind as, yesterday, I read these undisputed facts from a recent decision by the Eighth U.S. Circuit Court of Appeals based in St. Louis:

  • The plaintiff missed work for the entire month of February 2008.
  • Although the plaintiff later claimed her depression caused her absences, she never told her employer that she was ill (or gave her employer any real clue that she needed FMLA leave).
  • The plaintiff failed to use her employer’s call-in procedure for her February absences — all of them. (This notwithstanding that the plaintiff had her employer’s call-out number programmed into her phone and had used it over 100 times before).
  • The employer’s rule was three days of no-call-/no-show is a voluntary resignation.

Here’s the deal under the FMLA, folks. Most employers — really, everyone other than Carnac the Magnificent and Nate Silver — are not clairvoyant.

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Employee needs to notify employer of FMLA needs

If an employee needs FMLA, the employee needs to let the employer know that. The general rule is 30 days’ notice. However, when an employee’s serious health condition occurs out of the blue, the employee must provide notice of the need for FMLA leave as soon as practicable — as opposed to, you know, never, like the plaintiff here.

And that was the plaintiff’s demise here. No FMLA notice means no FMLA leave.

No FMLA leave means the plaintiff needs to abide by the employer’s work rules regarding call-outs. No call out for 29 days means the plaintiff ends up on this blog as a cautionary tale.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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