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My Employee Didn’t Ask For FMLA Leave — Do I Have To Offer It?

Under the Family and Medical Leave Act (FMLA), many employees are entitled to take up to 12 weeks of unpaid, job-protected leave per year for certain family and/or medical reasons, including:

  • The birth and care of a newborn child
  • The placement of a child with the employee through adoption or foster care
  • The care for the employee’s child, parent or spouse who has a serious health issue
  • A serious health issue suffered by the employee, which leads to the inability to work

While many workers are well aware of the FMLA — and the protections it provides — many are not.

So, what happens if an employee asks for leave that would otherwise be covered by the FMLA, but they don’t specifically mention the FMLA since they don’t know it actually exists? Must the employer still offer it, or does the employee need to ask for FMLA leave by name in order to get it?

Federal regulations have the answer

To address these questions, we need only look at federal labor regulations, which clearly state that an “employee need not expressly assert rights under the FMLA or even mention the FMLA” when seeking leave for the first time for a FMLA-qualifying reason.

This means that an employee has no obligation to ask for FMLA leave by name when they give their employer notice that leave is required. Indeed, courts have routinely held that an “employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.” 

However, just because the employee doesn’t have to ask for FMLA leave by name doesn’t mean there aren’t other conditions they have to meet. For example, the employee still must provide their employer with sufficient information so that the employer can reasonably determine whether the FMLA may by applicable.

Also, if the employer has additional questions that are meant to help determine whether the leave request falls under the FMLA, the employee is required to provide responses. If the employee fails to respond to these reasonable inquiries — and the employer is therefore unable to determine whether the FMLA applies — it may result in the denial of FMLA protection for the employee.

It is also important to point out that the requirements may change slightly if the employee has already taken FMLA leave in the past. For instance, if an employer has already provided an employee with FMLA leave for a particular qualifying reason, and the employee asks for leave again for the same reason, the employee must specifically reference 1) the need for FMLA leave or 2) the specific qualifying reason.

If any doubt, offer FMLA paperwork

Regardless of the situation, however, it is often a good idea for employers to provide employees with the required FMLA paperwork when they ask for leave — even if the employees didn’t request FMLA leave by name. After all, just providing the paperwork doesn’t mean their leave will be covered by the FMLA.

If you don’t, and it turns out the employee did have a FMLA-qualifying reason for their leave, you may come to regret your initial decision not to explore FMLA options. Simply put, it is always better to be safe than sorry.

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