There are no magic words an employee needs to utter to trigger rights under the Family and Medical Leave Act (“FMLA”). The Ninth Circuit’s recent decision in Rouse v. Wynn Las Vegas, LLC, No. 18-17452 (9th Cir. 2020) illustrates the point. In that case, Rouse sent his employer an email saying he wanted to take three days of paid vacation to have surgery. Even though Rouse did not mention the FMLA, the court found that the email, as well as previous statements Rouse made to his supervisors, should have caused his employer to initiate a conversation about FMLA rights.
The court cited the applicable regulation, which provides, “[i]n all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.” 29 C.F.R. § 825.302(c). So, even if an employee does not say they want FMLA leave, if an employee requests time off for something that seems like it might be covered under FMLA, the employer has a duty to follow up, determine whether FMLA leave is implicated, and if so, make sure the employee understands their rights and obligations. This diligence helps the employer too, because it ensures that FMLA-qualifying absences are properly designated and counted against the employee’s FMLA entitlement of twelve work weeks off in a twelve-month period.
The Ninth Circuit construed Rouse’s email as a request for FMLA leave. This finding was important because nine days after his email Rouse, who was employed as an audio-visual technician, was terminated for watching a movie on the job. If Rouse did not request FMLA leave, then he was not protected by the FMLA’s anti-retaliation provision. If, however, Rouse asked for FMLA protected leave, that request should not have been used as a negative factor in the employer’s decision to terminate. Based on timing and other circumstantial evidence, Rouse’s FMLA retaliation claim was allowed to proceed.