A federal court decision recently reminded employers of the importance of two things: (1) having an internal policy for leave requests under the Family and Medical Leave Act ("FMLA") spelled out in an employee handbook; and (2) being cognizant of whether an employee is informing the employer of her own or her relative's medical condition and need for leave. An employee's failure to comply with an employer's internal leave policy will generally be enough to prevent a claim of retaliatory discharge under the FMLA. However, if an employer is informed of the medical condition and an employee's need for leave—even if the employee did not follow company policy—the employer may not be excused.

Terminated employees often bring claims of retaliatory discharge against their former employers. One ground for a claim of "retaliation" is that the employee requested leave under the FMLA. The FMLA allows eligible employees to take unpaid leave from work due to certain medical emergencies, either involving themselves or family members. Employers cannot prevent employees from taking FMLA leave, nor can employers terminate employees for taking such leave.

A recent decision of the Seventh Circuit Court of Appeals (for Illinois, Indiana, and Wisconsin)—Nicholson v. Pulte Homes Corporation—found that an employee's failure to comply with an internal policy for taking FMLA leave prevented the employee from making a successful FMLA claim. The employer had specific instructions in the employee handbook for taking FMLA leave. When the employee claimed retaliatory discharge for requesting FMLA leave, the employer successfully asserted that the employee was aware of the internal policy and failed to comply with it. The Appellate Court agreed and dismissed the employee's claim.

The Court did caution that employees are entitled to leave even when employees do not mention the FMLA but mention their own or their family member's medical condition. This is referred to as "inquiry notice." Employees are not always aware that they are eligible to receive FMLA leave, and an employer who has received "inquiry notice" has an obligation to inform them of their rights under the FMLA. An employer may have inquiry notice if: (i) the employee has notified the employer of the seriousness of her own condition; or (ii) the employee has notified the employer of the family member's serious condition and a desire to seek leave to care for that family member.

The lessons here are two-fold. First, employers should ensure their employee handbook has adequate procedures for notification of FMLA leave. Second, if an employer becomes aware from an employee that the employee or her family members is seriously ill—even if the notification does not comply with proper company policy—the employer should comply with the FMLA, provide notice and the certification forms to the employee and determine whether the employee is eligible for FMLA leave.