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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Leave Under Family Medical Leave Act For Planned Surgery

The Family and Medical Leave Act (FMLA) grants an eligible employee the right to take 12 weeks of leave, over the period of any 12 months because, among other matters, the employee’s serious health condition that makes the employee unable to perform the functions of the employee’s position.  An eligible employee who takes FMLA leave is entitled, upon return from such leave, to be restored by the employer to the position held by the employee when the leave began or to be restored to an equivalent position with equivalent benefits and pay. 

FMLA Notice Requirements

The FMLA imposes obligations on the employee to provide proper notice to the employer of the need for FMLA leave.  The timing of the notice depends on whether the employee’s need for leave is foreseeable or unforeseeable.  If the employee’s need for leave is foreseeable, the employee must provide the employer with not less than 30 days notice, before the date the leave is to begin, of the need to take leave for a serious health condition.  However, if the employee’s need for leave is unforeseeable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, the employee must provide the employer with notice of the need to take leave for a serious health condition as soon as practicable.  In Bailey v. Amsted Industries, Inc., 172 F.3d 1041, 1045 (8th Cir. 1999), the Eighth Circuit Court of Appeals defined “as soon as practicable” to mean “as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.”  If an employee does not give the employer proper notice of the need for leave because of a serious health condition, the employee is not entitled to FMLA leave or protection. 

Because the FMLA imposes a 30-day advance notice requirement when the need for leave is foreseeable, the issue of whether an employee’s need for leave is foreseeable or unforeseeable is of critical importance to an employee’s entitlement to FMLA leave and protection.  If an employee’s need for leave is foreseeable, the employee must comply with the 30-day advance notice requirement.  However, if the employee’s need for leave is unforeseeable, then the 30-day advance notice requirement does not apply and the employee is only required to give notice of the need for leave as soon as practicable.  Unfortunately, courts have struggled with determining whether an employee’s need for leave was foreseeable or unforeseeable under the circumstances of the employee’s case.

Planned Surgery May Be Unforeseeable

In White v. Beltram Edge Tool Supply, 789 F.3d 1188 (11th Cir. 2015), the Eleventh Circuit Court of Appeals addressed the issue of whether an employee’s need for leave for planned knee surgery was foreseeable.  In that case, the Regina White’s (White) need for FMLA leave was based on an injury to her knee in April 2010 about 10 months before she requested FMLA leave.  At that time, an orthopedist prescribed physical therapy and told her she may need surgery if the knee remained unstable.  White continued to work for the remainder of 2010 until she stopped reporting for work on December 23, 2010 due to other health issues.   On January 27, 2011, White reinjured her knee.  On February 16, 2011, White requested an FMLA leave of absence until April 2011 because of planned surgery for the knee injury.  The next day, White was fired.

White asserted FMLA interference and retaliation claims against her employer.   A threshold issue in the case was whether was she gave proper notice of her need for FMLA leave and, thus, was entitled to FMLA leave and protection.  In other words, if White’s need for FMLA leave because of her knee surgery was foreseeable, she was not entitled to FMLA leave or protection because she did not comply with the 30-day advance notice requirement.  The trial court found, in relevant part, that White did not comply with the FMLA notice requirements and dismissed her FMLA claims.

At the outset of its opinion, the Eleventh Circuit noted that courts usually speak in terms of whether an employee’s need for leave because of a serious medical condition was foreseeable or unforeseeable.  However, the court pointed out, the FMLA is more specific because it requires 30 days advance notice if the need for leave is foreseeable based on planned medical treatment.  Thus, the court explained, an employee’s need for leave is foreseeable if it is based on planned medical treatment.  The question is the case, according to the court, was whether White’s knee surgery constituted planned medical treatment.

In resolving that issue, the Eleventh Circuit court rejected the trial court’s conclusion that White’s knee surgery was foreseeable because it was planned medical treatment.  The appellate court explained that although White knew for some time that surgery was an option, her doctor testified that that the surgery was elective only in the sense that would not result in amputation if not performed immediately.  However, the doctor explained, White’s knee would keep buckling and giving out until she had the surgery and as a result the surgery was relatively urgent.  Under such circumstances, the Eleventh Circuit reasoned, White’s surgery was not planned medical treatment and thus her need for leave was unforeseeable.  Consequently, White was only required to give notice of her need for FMLA as soon as practicable and the Eleventh Circuit reinstated White’s FMLA claims.     

Necessity Of Compliance With FMLA’s Notice Requirements

White illustrates the importance of compliance with the FMLA’s notice requirements.  Although reversed after a lengthy and costly appeal, the decision of the trial court in White reflects that an employee’s failure to comply with the notice requirements may result in loss of FMLA protection and dismissal of any FMLA lawsuit.  When an employee’s medical treatment is planned, the employee should always attempt to provide the employer with at least 30 days notice of his or her need for leave because of a serious health condition.  However, when the planned medical treatment is relatively urgent such as White’s knee surgery, an employee may be able to demonstrate that the need for leave was unforeseeable and still be entitled to FMLA leave and protection so long as he or she gives notice of the need for leave as soon as practicable.     

Consultation With Employment Law Attorney   

We have extensive experience representing employees who have been the victims of interference with their FMLA rights or retaliation for exercising their FMLA rights.  If you believe that your FMLA rights have been interfered with or you have been retaliated against for exercising your FMLA rights, please contact our office for a free consultation. 

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