BTW, Texting May Not Be Sufficient Notice to Take FMLA Leave

Despite the increasingly widespread use of texting as a form of communication in the workplace, its use calls for caution in certain situations.  For instance, the Fifth Circuit recently held that a text message an employee sent to her supervisor requesting an evening off of work because her father was in the emergency room was not sufficient to put the employer on notice that the employee intended to take FMLA leave.  Lanier v. Univ. of Texas Southwestern Med. Ctr., 5th Cir. No. 12-10928, 2013 U.S. App. LEXIS 11836 (June 12, 2013). 

In order to take FMLA leave, an employee is required to give notice to her employer that she intends to do so.  The notice does not need to use the phrase “FMLA leave,” but it does need to sufficiently apprise the employer of the employee’s intentions.  In the Lanier case, the court stated that the adequacy of FMLA notice depends upon what the court determines is “practicable” in a particular situation, and that, in this case, the notice was not adequate because the plaintiff was aware of the appropriate FMLA notice procedures but, rather than following those procedures, chose instead to send a brief text message to request time off. 

The contents of FMLA notices are especially important to keep in mind as employees use texting – an inherently informal method of communication – as a way to communicate with their bosses and supervisors.  Although texting may be informal, requesting FMLA leave is not, and using text messages to request FMLA leave may be inappropriate.  Although the Lanier court did not hold that employees cannot ever use text messages to provide FMLA notice, it did state that the employee must at least give the employer some inclination that he or she intends to take FMLA leave, which may be more information than a person would typically send in a quick text message asking for time off.  This decision, therefore, seems to call for caution and special awareness of surrounding circumstances when employees and employers use text messaging to communicate with one another. 

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