Employees seeking leave under the Family and Medical Leave Act are supposed to give 30 days’ notice if the need for leave is “foreseeable,” but what does “foreseeable” mean? Based on a recent 11th Circuit Court of Appeals decision, even elective surgery which could be planned far in advance, if “relatively urgent,” would not be foreseeable and thus not require 30 days’ advance notice of the need for leave.

In White v. Beltram Edge Tool Supply, 2015 WL 3634618 (June 12, 2015), the employee stopped reporting for work on December 23, 2011 due to a variety of health issues. While still absent from work on January 27, 2011, she visited her doctor and reported she had fallen the previous weekend and re-injured a knee she had injured the prior April. She reported her renewed knee injury to her supervisors the next day and asked for FMLA paperwork to be absent for knee surgery. The company asked her to send doctors’ notes explaining her absences since December 23. In response, she submitted two doctor’s notes, one indicating that she could return to work January 24 and the second, dated January 24, indicating she could return to work on January 31. The FMLA paperwork indicated she would be unable to work for a period extending a little beyond 12 weeks. On February 17, the company terminated her because she had been cleared to return to work January 31 but had not done so. She underwent knee surgery March 7 and subsequently sued for FMLA interference and retaliation. The trial court granted summary judgment in favor of the employer, but the 11th Circuit reversed.

The 11th Circuit said an employee’s need for leave is foreseeable if it is “based on planned medical treatment.” Notwithstanding her doctor’s testimony that the employee’s knee surgery was “elective” and “something that could be scheduled in advance and planned for,” the court held that the need for leave was unforeseeable. The appellate court focused on the district court’s failure to view the evidence in the light most favorable to the employee, noting that although the doctor said it was “not a true emergency where you’re going to lose your leg if it isn’t done right away,” it was, in his view “relatively urgent.” The take-away for employers would be that the “relatively urgent” need for surgery would meet the standard for “unforeseeable” and therefore the employee would not be required to give 30 days’ notice. The court also rejected the employer’s position that the employee could be terminated because the doctor’s note said she would need more leave than the 12 weeks provided for in the FMLA. The court said the FMLA certification form was only an estimate of the length of the employee’s anticipated need for leave, and after the fact, the evidence showed she could have actually have returned to her job in fewer than 12 weeks. The takeaway there: let the employee take the 12 weeks of leave and then ascertain whether the employee is able to perform the job.