Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

FMLA Notice

Wmployees seeking to activate their rights under the Federal Family & Medical Leave Act (FMLA) to take time off from work for medical reasons must give timely notice of their request for leave of absence.  A recent ruling of the 8th Circuit Court of Appeals underscores the need for compliance with the timeliness requirement.  In Bosley v. Cargill Meat Solutions Corp., 707 F.3d 777 (8th Cir. 2013), the court affirmed dismissal of a lawsuit by an employee who claimed violation of her rights under the FMLA.  The court dismissed the suit on grounds that the employee did not give notice of her request for a leave of absence until after she had been terminated.  The employee failed to show up for work for nearly a full month and did not call in during that time.  After she was terminated, she sought to activate her rights under the FMLA, but the appellate court, upholding the

lower court decision, ruled that she failed to comply with the requirement under the FMLA that an employee give timely notice “as soon as practicable” of her request for leave of absence, pursuant to Department of Labor regulations set forth in 29 C.F.R. §825.303.  The regulation suggests that notice be given no later than within “one or two working days of learning of the need for leave,” although the period can be extended for “extraordinary circumstances” when such notice is “not feasible.”

The Bosley case serves as a reminder to employees and their advocates of the need to furnish notice on a timely basis in order to activate their right to a leave of absence under the FMLA.  Employers and their advocates should insist upon the need for timely notice before honoring an FMLA request or raising timeliness as a defense, if applicable, against claims of interference with FMLA rights or retaliation in response to the exercise of rights under the statute.

Marshall H. Tanick

Hellmuth & Johnson, PLLC, Edina


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