FMLA Notice Requirements: What a New Appeals Court Ruling Means for HR

What exactly are the FMLA notice requirements employees must meet before taking leave?

The answer isn’t simple – and getting it wrong can expose employers to costly legal risks.

That’s why HR professionals need to understand a new federal appeals court ruling that sheds important light on FMLA notice obligations. Here’s what happened.

FMLA and Notice: What Happened?

Tonya Huber managed a Hardee’s restaurant for Westar Foods, which runs Hardee’s locations in Nebraska and Iowa.

About two months after she started working for Westar, Huber was diagnosed with diabetes. As a result, she needed to take insulin at work and to eat during her shifts. She said management was not helpful, with one supervisor allegedly telling her that her need to store insulin at room temperature at work was a “[you] problem, not a [me] problem.”

Huber repeatedly violated Westar’s rule requiring her to let a supervisor know immediately if she would be late or absent. After she had done so three times, an incident took place that led to her termination.

Diabetic Employee Was in a ‘Complete Fog’ – or Was She?

Specifically, Huber woke up one morning feeling “in a complete fog” and with low blood sugar. She drove herself to a clinic, where a doctor placed her on an IV. She called her boyfriend several times, but the restaurant opened five hours late because she did not call anyone at work until the next day.

On that call, she told a manager that she needed to take sick leave and mentioned a doctor’s note she had just sent. She said she didn’t call earlier because she was “out of it,” but she had no answer when the manager asked how she was able to drive herself to a clinic and supposedly not able to call in to work.

About 30 minutes after the call, Westar’s president decided to terminate Huber’s employment.

Before she learned of that decision, Huber asked Westar to count the days she missed as FMLA leave. The answer she got was news to her, and it was also a harsh double whammy: Westar denied her request, and it also told her that her employment was terminated.

Fired Employee Files FMLA Interference Lawsuit

Huber sued Westar, alleging interference and retaliation claims under the FMLA. A federal district court ruled against her, and she filed an appeal.

Focusing on the issue of FMLA notice, the U.S. Court of Appeals for the Eighth Circuit revived Huber’s claim that Westar illegally interfered with her FMLA rights.

The appeals court explained that to win on her FMLA interference claim, Huber had to show:

• She was eligible for FMLA leave
• Westar knew she needed the leave, and
• Westar denied her an FMLA benefit that she was entitled to receive.

The interference claim turned on the second element. Westar said it did not know about Huber’s need for FMLA leave when it made its decision to let her go.

The court explained that Huber’s duty under FMLA notice rules was to give Westar enough information to reasonably suggest she might need leave.

Huber gave Westar a doctor’s note, and she told her manager on the call that she was having trouble related to her diabetes. The court said that based on these facts, a jury could reasonably find that Westar knew she needed FMLA leave.

FMLA Notice: What About Timing?

As for timing, the appeals court clarified that when the need for leave isn’t foreseeable, FMLA notice only needs to be provided as soon as practicable.

Westar argued that it was practicable for Huber to provide FMLA notice sooner, pointing out that she made several other calls before contacting work.

But Huber countered that she was heavily medicated and “out of it.”

The court said the timing issue was for a jury to decide, since the evidence “points both ways.” As a result, it erased the lower court’s decision to reject the FMLA interference claim and sent the case back to the lower court for further proceedings.

FMLA Notice Requirements: How Things Work

When it comes to notice and the FMLA, the first thing to remember is that the employee generally must provide the employer with notice of the need for leave. But things can get sticky, as they did here.

The key overriding question: Did the employee provide enough information for the employer to know that the leave may be covered by the FMLA?

Here are specific points to keep in mind:

• FMLA notice may be provided orally or in writing.
• Employees do not have to specifically mention the FMLA when seeking leave under the statute.
• If the need for leave is foreseeable, employees generally must provide at least 30 days of advance notice. Think of an employee who knows they are having major surgery two months down the road. There’s no reason for that employee to delay providing notice to their employer.
• If the need for leave is foreseeable, employees must tell their employers when the leave is needed and how much leave is needed.
• If the need for leave is not foreseeable, employees must provide notice to their employer as soon as it is possible and practical to do so. Of course, this is a fact-specific question whose answer will depend on the particular circumstances involved.

FMLA Notice Issues: Practical Tips

To minimize the risk of getting caught up in an FMLA notice-related dispute, here are your keys:

• Make sure to provide all eligible employees not only with notice of their FMLA rights but also their obligations when it comes to the need for FMLA leave. Fire prevention beats firefighting.
• If the need for leave is foreseeable and the employee does not provide at least 30 days of advance notice, employers can delay the start of the leave until 30 days after the notice is provided.
• In cases involving foreseeable leave, employees have an obligation to schedule treatment in a way that minimizes disruption to company operations.
• As soon as employers receive information showing that a need for leave may be for an FMLA-qualifying reason, they should begin the FMLA process with the employee.
• Train managers to recognize FMLA-qualifying reasons for leave and begin the process when appropriate.
• Provide regular FMLA training to all management personnel.
• When in doubt, err on the side of caution or seek legal advice.

For more, download our comprehensive blueprint, The Family and Medical Leave Act: An Employer’s Guide, to get clear answers on:

• FMLA eligibility
• Intermittent leave, and
• Compliance strategies that help reduce legal risk.

Huber v. Westar Foods, Inc., No. 23-1087 (8th Cir. 5/30/25).