To take FMLA leave, all that an employee needs to do is communicate sufficient facts to his employer to establish that he has a valid reason for taking FMLA leave. He does not need to specifically state that he is requesting FMLA leave.
An example of this might be a situation where an employee tells an employer that she needs time off work because she is going to undergo back surgery, which will require her to miss work for ten weeks. Because this information establishes that the employee desires leave to deal with a situation that falls into the definition of a serious medical condition, she is considered to have made a proper request for FMLA leave even though she never mentioned that statute.
If an employee’s need to take FMLA leave is foreseeable, she is required to give the employer 30 days advance notice that she intends to take leave. However, in situations where the need to take leave is unexpected, so as not to reasonably allow the employee to give 30 days advance notice of her need to take leave, the employee is only obligated to give as much notice “as is practicable” under the particular circumstances of the situation.
Once an employee makes a valid request for FMLA leave, the employer must tell the employee within two days of the request if it intends to deny the leave based on any permissible situations, such as the employee’s illness not being a serious medical condition, or the employee already having taken his full allotment of leave for the year. If the employer believes that the employee is eligible for the leave, it must tell the employee in advance that it is granting the leave as FMLA leave. If the employer grants leave, but does not tell the employee that it considers the leave to be FMLA leave, the employer will lose the right to count the leave taken by the employee against the 12 weeks of FMLA leave allotted for the particular year.
When a leave request is received, the employer is also obligated to provide other information to the requesting employee. This includes whether or not the employer is going to require health care provider certification that the condition of the employee or family member is a serious medical condition, whether the employee will have the right (or be required by the employer) to substitute paid leave for unpaid FMLA leave, and whether the employer is going to need medical certification from the employee that he is recovered from a serious medical condition before he can return to work. The employer is also required to advise the employee of his or her right to reinstatement following conclusion of the leave, or of the employer’s right to deny reinstatement to the same or equivalent position if the employee is a key employee.