Under the Family and Medical Leave Act, employees do not need to ask for FMLA leave by name in order to qualify for its protections. However, the employee bears the burden of at least providing the employer with adequate information to allow it to conclude that the employee needs or intends to take a leave of absence for qualifying reasons. Last month, in an unpublished decision, the Fifth Circuit Court of Appeals rejected a FMLA claim by an employee who advised his employer that there was a possibility that he would need to take FMLA leave following the birth of his child.

In Wilson v. Noble Drilling Services., Inc., the employee filed a lawsuit alleging FMLA retaliation following his termination after a pay dispute with his employer. The plaintiff claimed that the termination was actually motivated by his informing the employer that he might need FMLA leave following the birth of his child. The Fifth Circuit rejected the claim, affirming summary judgment for the employer.

The court concluded that the employer could not have retaliated against the plaintiff under FMLA, because the plaintiff had not engaged in any protected activity under that statute. Telling an employer that he might need to take FMLA is not sufficient to place the company on notice that he would be exercising FMLA rights. At least in the paternal childbirth context, the father must provide the employer with more definitive information regarding his intentions before FMLA's protections apply.