“I’m Working From Home” ≠ Request for FMLA Leave

An employee must actually request leave (for a covered reason) in order to trigger the protections of the Family and Medical Leave Act – and saying that they are working from home is not a request for leave, as the U.S. Court of Appeals for the Third Circuit recently noted.

In Conway v. ConnectOne Bank, the employee was a Senior Vice President for Commercial Lending, whose job required him to travel and allowed him to work frequently from home. After each of his wife’s two surgeries, the employee told his managers that he would be out for a significant amount of time and working from home. The employee was subsequently terminated for lack of performance, and he sued for violations of the FMLA and analogous state law.

The Third Circuit rejected the employee’s claim that he was protected by the FMLA because he told his employer that his wife had surgery and he needed to work from home to care for her. As the Third Circuit noted, “[t]o give proper notice, an employee must request or relay an intention to take leave.” The Third Circuit made the reasonable observation that, “An employee who says that he intends to work while out of the office has not conveyed to his employer that he is unable to work or that he seeks time off.”

Although, this case offers good news to employers that employees must actually request leave in order for the FMLA to apply, they should be aware that, as the Third Circuit noted, there is “considerable leeway” in how leave may be requested. The employee does not need to reference the FMLA. As long as they provide enough information to the employer that they need time off or are unable to work for a reason that is potentially covered by the FMLA, they will be entitled to the protections of the law.