Family and Medical Leave Act

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Family and Medical Leave Act. * * * The FMLA, in relevant part, entitles "an eligible employee ... to a total of 12 workweeks of leave during any 12-month period ... b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. 2612(a)(1)(D). The leave can be unpaid. Id. 2612(c). "Upon an employee's return, her employer must reinstate her to the same or an equivalent position, without any loss of accrued seniority." Carrero-Ojeda, 755 F.3d at 718 (citing Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir. 2005)); see also 29 U.S.C. 2614(a)(1). * * * The pertinent regulations place the burden on the employee to notify the employer of the need for such leave. See 29 C.F.R. 825.303. Where the leave is unforeseeable, "an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case." Id. 825.303(a). In providing such notice, the employee must supply "sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request." Id. 825.303(b). What constitutes "sufficient information" depends on whether the employee has received leave for that FMLA-qualifying reason before. If she has, "the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave." Id. If she has not, "the employee need not expressly assert rights under the FMLA or even mention the FMLA." Id. In either case, however, the employee does not satisfy this burden merely by calling in sick. See id. ("Calling in 'sick' without providing more information will not be considered sufficient notice to trigger an employer's obligations under the Act."). * * * To protect the exercise of the substantive rights described above, the FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" such rights. 29 U.S.C. 2615(a)(1). Under this provision, employees may assert so-called "interference" claims alleging deprivations of their substantive rights. Colburn, 429 F.3d at 331. We also permit employees to advance claims under a "retaliation" theory based on their employers' "use of] the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions." 29 C.F.R. 825.220(c); see also Colburn, 429 F.3d at p.73 330-32 (identifying the basis of retaliation claims and exploring the overlap between retaliation and interference claims).Germanowski v. Harris, 854 F. 3d 68 (1st Cir. 2017)