Texas court declares: No FMLA notice, no FMLA claim

Recently, the U.S. 5th Circuit Court of Appeals (whose rulings apply to all Texas employers) reaffirmed its commitment to the principle that no Family and Medical Leave Act (FMLA) claim exists unless the employee gives notice of an intent or a desire to seek or take FMLA leave. Texas employers aren’t required to be “clairvoyant.”

Hallway conversation

Elizabeth Cerda worked for Blue Cube Operations. In 2018, she told her supervisor she was going to visit her ailing father during her 30-minute lunch break to “make sure he had his medicines and something to eat.” After a while, the supervisor helpfully suggested she check with HR to determine if she could use FMLA leave for this purpose.

Sometime in 2020, Cerda approached an HR manager in the hallway and, in a very brief conversation, expressed a desire to explore “possibly getting FMLA for [her] dad.” That was it, and she continued to use her lunch breaks to visit her father.

One problem: Cerda consistently exceeded her allocated lunch break without reporting that she was doing so. Coworkers became upset and informed management of her conduct, and the company concluded she had been paid for at least 99 hours she didn’t work.

Upon being told she needed to use personal sick days to cover her absences, Cerda threatened to infect her coworkers the next time she was sick. (At the time, she had contracted COVID-19.) She was fired.