The Family and Medical Leave Act (“FMLA”) allows eligible employees to take up to twelve (12) workweeks of leave in any twelve-month period if a “serious health condition . . . makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). Therefore, it is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right” that the FMLA affords. 29 U.S.C. § 2615(a)(1). However, for an employee to invoke their right to FMLA leave, he or she must first show they provided their employer with legally sufficient notice of their need for FMLA leave. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007). Furthermore, while “[t]he regulations provide some guidance as to what sort of notice is sufficient[,] [i]t is clear that an employee need not give his employer a formal written request for anticipated leave.” Id. at 402. “[T]he employee need not use any magic words… [only] reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.” Id.; 29 C.F.R. § 825.302(c); See also Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999) (employees don’t need to specifically mention FMLA leave, only that leave is needed or may be needed).
Recently, the United States District Court of New Jersey in Cipully v. Lacey Twp. Sch. Dist., 2019 U.S. Dist. LEXIS 206442, (Decided Nov. 27, 2019), was presented with the question of whether an employee is entitled to FMLA benefits if they inform their employer of their serious health condition, but never explicitly request or state a need for time off, but rather continue to report to work. In Cipully, plaintiff was a school district employee who gave her supervisor advance notice that she was scheduled for spine surgery and would need some time off for the surgery and to convalesce. Her supervisor permitted Cipully to take leave “so long as [she] return[s] before school starts.” Even though her doctor did not release her to return to work by the time school started, Cipully returned any way, claiming she felt intimidated by her employer to do so.
After returning to work, Cipully informed her employer on numerous occasions that she was still in pain and that her doctor had not approved her return to work. Id. at *2. However, she never made another request to take off from work or stated that she needed or may need to take time off from work because of her back condition. Soon after, Cipully’s employment was terminated for alleged “poor performance and inappropriate conduct.” Cipully sued the Lacey Twp. Board of Education (LBOE) alleging, amongst others, that her firing was in retaliation for her attempting to take FMLA leave. The LBOE immediately moved to dismiss her complaint arguing, “that because the Complaint contains no allegations that Plaintiff unequivocally requested and was denied FMLA leave, Plaintiff’s allegations are insufficient to establish proper notice of her intention to take such leave.” Id. at *4.
The New Jersey District Court in a Memorandum Order authored by United States Federal Judge Michael A. Shipp, rejected the LBOE’s argument holding the LBOE had enough information at its disposal to know that: Cipully’s health issues were those that would qualify her for FMLA leave; that she was continuing to suffer from said health issues; and that her doctor repeatedly told her that he never approved her return to work. Id. at *5. Based on Judge Shipp’s ruling in Cipully, it may be persuasively argued that an employee does not need to explicitly request or even directly state a need for FMLA leave – they need only to convey enough information that would reasonably make an employer aware that they may be entitled to FMLA leave benefits.
At Mashel Law LLC, we are well experienced in FMLA and New Jersey Family Leave Act claims. If you have been the victim of retaliation for attempting to take FMLA and NJFLA leave, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.