publications full of ideas

Magic Words Unnecessary – But Staying Out of Work Not Enough – to Request Medical Leave Under the FMLA


A common issue surrounding a medical leave of absence from work under the Family and Medical Leave Act (FMLA) pertains to whether the employer was on notice that the employee sought FMLA-protected leave. Depending on the size of the employer and the number of hours the employee worked in the twelve months preceding leave, the FMLA could entitle the employee up to twelve weeks of unpaid leave for, among other things, a “serious health condition that makes the employee unable to perform the functions” of his/her job. When an employee requests FMLA leave or the employer obtains knowledge that leave might be for an FMLA-qualifying reason, the employer is required to notify the employee of his/her eligibility to take FMLA leave. In that instance, the employer must also notify the employee of his/her rights and responsibilities under the FMLA and if the leave will be designated as FMLA leave.

In Shoemaker v. Alcon Laboratories, Inc., No. 17-1738, 2018 U.S. App. LEXIS 21707 (4th Cir. 2018), the United States Court of Appeals for the Fourth Circuit recently discussed what qualifies as sufficient notice to an employer that its employee is requesting FMLA leave. There, the employee, Shoemaker, had experienced neck and back pain, headaches, and dizziness at work, but she never told her employer that these symptoms prevented her from performing her job. On one occasion, Shoemaker passed out at work, and her employer allowed her leave to recover. After she returned, Shoemaker provided a doctor’s note recommending that she work in a different setting until further evaluation, but Shoemaker had already been removed from that setting.

A few weeks later, Shoemaker “called to say she would not be at work,” but she provided no excuse for her absence. Shoemaker had exhausted her paid time off, so she was issued a final warning. Subsequently, Shoemaker was terminated for, among other things, her unexcused absence. In affirming the dismissal of Shoemaker’s FMLA-based claims, the Fourth Circuit explained that “‘an employee seeking leave for the first time for an FMLA-qualifying reason need not expressly assert rights under the FMLA or even mention the FMLA,’” but she must “‘provide sufficient information for [her] employer to reasonably determine whether the FMLA may apply to the leave request.’” Although magic words are not required to request FMLA leave, the Court emphasized that a “request for leave for a medical reason is necessary to trigger Shoemaker’s notification rights under the FMLA.” The evidence established that Shoemaker did not make a request for leave due to a medical condition when she called in her absence. Consequently, her employer’s knowledge of her recent medical issues related to neck and back pain, headaches, and/or dizziness at work was not enough to put it on notice that Shoemaker’s absence might qualify as FMLA leave.

The Fourth Circuit’s common-sense approach applied in Shoemaker highlights that employers are generally not required to read the minds of their employees to predict or guess the reasons behind absences. Yet, the Court’s ruling also demonstrates that employees need not expressly mention or assert rights under FMLA to put their employers on notice that their absences might qualify as FMLA protected leave. To avoid interfering with employees’ FMLA rights, employers should carefully analyze leave requests to determine whether the leave requested may qualify as FMLA leave. Consultation with legal counsel to assess employee leave requests and whether the requests qualify for FMLA protections can help avoid costly legal disputes.

Physical Address: 301 Fayetteville Street, Suite 1900, Raleigh, NC 27601 | © Poyner Spruill LLP. All rights reserved.

related information

what's new at the firm

2019 Charlotte Employment Seminar: Navigating Risks in the Workplace


Wednesday, May 15th at 2 P.M. Join us as we discuss the impact of #metoo and managing risks in retirement plans.

Employee Benefits Day Webinar: Executive Compensation


Attracting and retaining executives and key employees is critical to an organization's success. As a result, offers of employment often come with special perks and promises. These additional benefits are essential in attracting the executive, but can create unintended liabilities. This session will identify common issues associated with executive compensation arrangements, discuss the potential liability, and provide practical tips to allow you to spot potential issues before they become liabilities.

Poyner Spruill’s First Ever NCAA Tournament Party


This year we will be hosting our first annual NCAA Party!

Mayo named Client Choice Award winner in North Carolina


RALEIGH, N.C. — Poyner Spruill partner Kelsey Mayo has been named the 2019 Client Choice Award winner in the Employment & Benefits category for North Carolina.

Terminating Employment: Best Practices to Navigate the Termination Minefield


How an employer manages an employment termination is often the determinative factor in whether an employee sues for wrongful termination. This webinar discussion focuses upon best practices that should be used to minimize frequency of post-termination lawsuits, severance and release considerations, and essential planning and documentation for termination of an employee.