IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30050

JUNE MANUEL,

Plaintiff-Appellant,

versus

WESTLAKE POLYMERS CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

(October 3, 1995)

Before KING, HIGGINBOTHAM, and PARKER, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

June Manual appeals a summary judgment in favor of Westlake

Polymers Corporation. The district court held that Manuel did not

satisfy the notice requirements of the Family and Medical Leave Act

of 1993, 29 U.S.C. § 2601 et seq., because she did not expressly

invoke the statute's protection when she notified her employer of

her need for leave. We reverse and remand.

I.

June Manuel began working for Westlake Polymers Corporation in

July 1986. Manuel missed a substantial number of days of work each

year. In 1987, for example, she was absent seventeen days. As a

result, Westlake's supervisors advised Manuel that her employment

would be in jeopard y if her attendance did not improve. Despite2

the warning, she missed forty-nine days in 1988 and thirty days in

1990. In June, 1991, Bryan Taylor, Westlake's Human Resources

Coordin ator, informed Manuel that her attendance record was

unacceptable.

In 1992 Westlake established a "no fault" employment policy

designed to ensure that its employees met reasonable attendance

standards. Under the terms of the policy, every absence was

counted regardless of the cause of the absence. The policy

established a four-step system of progressive warnings and

disciplinary measures calculated to apprise employees of attendance

problems. Step one was an oral reprimand; step two was a written

warni ng; step three was a one-week suspension and final warning;

and step four was termination.

Manuel was warned in February, July, and Sept ember of 1992,

the last of which informed her that "failure to immediately correct

this problem will result in more severe disciplinary action, up to

and including termination." Manuel continued to miss days of work.

On December 30, 1992, Westlake sent Manuel a formal warning letter

n otifying her that, since the last warning three months earlier,

she had missed approximately 14 days of work. This letter again

advised her that her co ntinued absenteeism could result in

suspension or termination.

On October 6, 1993, two months after the FMLA went into

effect, Manuel visited Dr. Frank Robbins seeking treatment for an

ingrown toenail. Dr. Robbins advised her that her toenail needed

to be removed and that, if the procedure were performed on a3

Friday, she could return to work the following Monday. Manuel

notified her supervisor, Sheldon Cooley, who immediately gave her

permission to take Friday, October 8th off from work.

Dr. Robbins performed the procedure that Friday, but

complications developed. Due to infection and swelling of her toe,

Manuel was unable to walk without crutches. On the following

Monday, Manuel contacted Cooley and notified him that she could not

return to work due to her toe. Keeping in constant contact with

Westlake, she remained absent from work for over a month. During

this time, Manuel did not mention the FMLA, nor did she expressly

invoke its pr otection. In fact, Manuel did not know the Act

existed.

On November 29, 1993 at the request of Westlake, Manuel saw

Dr. White, the Westlake company physician. After examining Manuel,

Dr. White pronounced her able to return to work and advised her to

report for work. The following day she returned to work, but

Westlake promptly suspended her for four days and issued its "Final

Warning/Suspension Letter for Unsatisfactory Attendance." The

letter stated that "unless you are able to and actually do report

for work regu larly and as scheduled, your employment will be

terminated."

Less than two months later, on January 25, 1994, Manuel became

ill while at work and went home. She returned to work after three

days, but this absence was one too many. On February 7, Westlake

fired her because of her persistent attendance problem.4

On April 14, 1994, Manuel sued Westlake in the United States

District Court for the Western District of Louisiana, alleging that

Westlake violated the Family and Medical Leave Act of 1993, 29

U.S.C. § 2601 et s eq., by counting her October-November, 1993

absence as an additional step in its "no fault" policy. After

conducting limited discovery, both Manuel and Westlake moved for

summary judgment.

The district court granted Westlake's motion for summary

judgment. The court found that Manuel notified her supervisor of

the need to miss work for medical reasons but did not expressly

invoke the FMLA or its protection when requesting leave. Examining

the Department of Labor's interim regulations, the court noted that

the regulations specified different notice requirements depending

upon the foreseeability of the need for lea ve. Although in the

case of foreseeable leave the employee "need not express certain

rights under the FMLA or even mention the FMLA," 29 C.F.R.

§ 825.302(b), the regulation governing unforeseeable leave omitted

this language and required an employee to give notice to her

employer "of the need for the FMLA leave." 29 C.F.R. § 825.303(a).

Noting that Manuel's extended absence in October-November,

1993 was unforeseeable, the d istrict court determined that her

ingrown toenail was not such "an obviously serious injury, such as

a broken leg, cancer, or heart attack, which would trigger an

employer inquiry into whether the e mployee intended to use FMLA

leave." The court concluded that when the need for leave is

unforeseeable "and when the serious medical condition alleged is5

not the type which would normally require an employer to inquire

whether FMLA leave is needed, it is not inconvenient nor unduly

burdensome to require an employee in some manner to refer, or

attempt to refer, to the Act." Because Manuel did not make such an

attempt, the court held that Manuel's notice to Westlake was

insufficient to trigger the protection of the FMLA and granted

Westlake's motion for summary judgment.

II.

The FMLA provides eligible employees such as June Manuel

twelve weeks of unpaid leave each year for "a serious health

condition that makes the employee unable to perform the functions

of the position of such employee." 29 U.S.C. § 2612(a)(1)(D).

Where that leave is foreseeable

, th e Act requires that the

employee:

(B) shall provide the employer with not less than 30

days' notice, before the date the leave is to

begin, of the employee's intentio n to take leave

under such subparagraph, except that if the date of

the treatment requires leave to begin in less than

30 days, the employee shall provide such notice as

is practicable.

29 U.S.C. § 2612(e)(2)(B). Significantly, the Act does not specify

the form of notice required for foreseeable leave, nor does it

mention any notice requirement for unforeseeable leave.

Similarly, the legislative history of the FMLA does not

mention the content of the notice that an employee must give. The

Senate Report accompanying the Act explains that 30-day advance

notice is required for foreseeable leave but that "[e]mployees who

face emergency medical conditions or unforeseen changes will not be1 29 U.S.C. § 2654.

2 The Secretary released final regulations effective April

6, 1995. S ee 60 Fed. Reg. 2181 (Jan. 6, 199 5). However, the

interim regulations govern this dispute since Westlake's decision

to suspend Manuel in December 1993 occurred prior to the release of

the final regulations.

6 pre cluded from taking leave if they are unable to give 30 days'

advance notice." S. Rep. No. 3, 103rd Cong., 1st Sess. 25 (1993),

reprinted in 1 993 U.S.C.C.A.N. 3, 27. The House Report is more

vague, stating only that "30-day advance notice is not required in

cases of medical emergency or other unforeseen events." H.R. Rep.

No. 8, 103rd Cong., 1st Sess., pt. 1, at 38 (1993). However,

neither report mentions whether an employee must expressly invoke

the FMLA when taking leave.

Mor e helpfully, the Secretary of Labor, pursuant to his

statutory authority, 1 promulgated interim regulations specify ing

what notice an employee must give. 29 C.F.R. §§ 825.302, 825.303. 2

The interim regulations provide that, when the need for leave is

fore seeable, the employee must give "at least verbal notice

sufficient to make the employer aware that the employee needs FMLAqualifying leave, and the anticipated timing and duration of the

leave." 29 C.F.R. § 825.302(c). Significantly, the regulation

continues, providing that an employee "need not expressly assert

rights under the FMLA or even mention the FMLA, but may only state

that leave is needed for an expected birth or adoption, for

example." Id.

When the need for leave is unforeseeable, however, the interim

regulations contain no disclaimer of notice expressly invoking the7

FMLA's protection. The regulation requires that an employee

"should give notice to the employer of the need for FMLA leave as

soon as practicable under the facts and circumstances of the

particular case." 29 C.F.R. § 825.303(a). Westlake interprets

this difference in regulatory language as denoting that, when the

need for leave is unforeseeable, an employee must mention the FMLA

in order to provide sufficient notice to the employer. We

disagree.

First, the regulation governing notice for unforeseeable leave

does not, on its face, require express invocation of the FMLA.

Rather, the r egulation requires "notice of the need for FMLA

leave." The reference to "FMLA leave" is ambiguous at best; it

doe s not compel the conclusion that an employee seeking "FMLA

leave" must mention the statute by name. The district court itself

dou bted that the phrase "FMLA leave" denotes a substantive

requirement that an employee mention the FMLA when requesting

leave.

Second, the absence of the disclaimer does not impose a

r equirement that the leave be expressly invoked by employees who

could not for esee their need for leave. To the contrary, other

provision s in the interim regulations suggest that the Secretary

did not intend employees , including those who could not foresee

their need for FMLA leave, to expressly invoke the FMLA to satisfy

their notice obligation. § 825.208(a)(1) iterates:

As noted in section 825.302(c), an employee giving notice

of the need for unpaid FMLA leave does not need to

expressly assert rights under the Act or even mention the

FMLA to meet their [sic] obligation to provide notice,8

though they would need to state a qualifying reason for

the needed leave.

Moreover, this regulation provides that " [i]n all circumstances

, it

is the employer's responsibility to designa te leave, paid or

unpaid, as FMLA-qualify ing, based on information provided by the

employee." 29 C.F.R. § 825.208(a)(2). If the employer does not

have sufficient information about the employee's reason for taking

lea ve, "the employer should inquire further to ascertain whether

the paid leave is potentially FMLA-qualifying." I d. To require

the employee to designate her leave as pursuant to the FMLA would

render t hese provisions meaningless, if not directly contradict

them.

Any doubt as to the Secretary's intention is resolved by the

final regulations, which confirm that an employee seeking leave for

unforeseen medical treatment need not expressly invoke the Act's

protection. Resolving the ambiguity lying at the heart of this

case, the final regulat ion governing notice requirements for

unforeseeable leave incorporates the disclaimer of express notice.

29 C.F.R. § 825.303(b) now provides that "[t]he employee need not

expressly assert rights under the FMLA or even mention the FMLA,

but may only state that leave is needed." 60 Fed. Reg. 2181, 2258

(1995).

Westlake argues that this change in regulatory language

confirmed that the interim regulation did require express mention

of the FMLA. We disagree. The Department of Labor's explanation

of the amendments to the interim regulations does not even discuss

its addition. S ee 60 Fed. Reg. 2221. This treatment suggests that9

the Department of Labor was attempting to clarify the law as it

existed under the interim regulation, not to remove a pre-existing

duty to mention the FMLA when requesting leave.

Westlake's argument ultimately rests on a perceived regulatory

error. It offers no practical reason for its proposed reading.

Westlake does not explain why the Secretary would impose such a

stringent requirement upon employees who cannot foresee their need

for leave but not upon employees who can foresee their need for

leave. Congress added the notice requirement to assist employers

plan around their employees' absences. S ee S. Rep. No. 3 at 2,

reprinted in 1993 U.S.C.C.A.N. 3, 4; 137 Cong. Rec. H9727

(statement of Rep. Roukema) (noting that employee must give notice

"so as not to unduly disrupt the operations of the employer").

That goal is not advanced by requiring emp loyees to expressly

men t ion the FMLA by name: an absent employee is an absent

employee.

Westlake argues that requirin g express mention of the FMLA

furthers the employers' abili ty to invoke their rights under the

Act. We disagree. The FMLA grants no rights to employers that

they did not possess prior to the Act. Nor do we believe that

Congress added the notice provision to apprise employers of their

right to pursue their statutory safeguards.

M eanwhile, requiring employees unable to foresee their need

for leave to expressly invoke the FMLA's protection would

significantly burden the employees. Employees often cannot foresee

their need for medical or family leave. S. Rep. No. 3 at 25,10

reprinted in 1993 U.S.C.C.A.N. at 27. Even more than employees who

can foresee their need for leave, those who cannot foresee such

need are ill-e quipped to identify the statutory source of their

rig ht. We do not believe that Congress, in enacting the FMLA,

intended to i mpose such an onerous requirement on employees,

particularly where employers receive no benefit from it.

We are persuaded that the interim regulations do not require

employees to expressly mention the FMLA when notifying their

employer of their need for FMLA leave.

B.

Westlake argues that if the regulations permit employees to

invoke the FMLA's protection without expressly mentioning the Act,

they are contrary to the FMLA. We disagree. Where a statute is

silent or ambiguous, we limit our inquiry to "whether the agency's

answer is based on a permissible construction of the statute."

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.

,

467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).

Administrative regulations promulgated in response to express

delegations of authority, like the one at issue here, "are given

controlling w eight unless they are arbitrary, capricious, or

manifestly contrary to the st atute." I d. at 844, 104 S.Ct. at

2782; see also 1A Sutherland Stat. Const. § 31.06 (5th ed.) (noting

"regulations are generally entitled to great deference").

Neither the statutory language nor the Act's legislative

history disclose congress ional will regarding the content of the

required notice. We are unable to say that the regulations11

challenged here are so patently at odds with the legislative scheme

as to render them invalid. To the contrary, their disclaimer of

any requirement that notice must expressly invoke the FMLA is a

reasonable interpretation of the statutory scheme created by

Congress.

Westlake points to the "express m andate" of the statute

requiring notice of the employee's intention "to take leave under

such subparagraph." 29 U.S.C. § 2612(e)(2)(B). We reject the

contention that the FMLA requires employees not only to invoke the

statute's protection by n ame, but to refer to the specific

subparagraph of the FMLA under which they claim protection. These

are workers, not lawyers. A ccord D'Alia v. Allied-Signal Corp. 614

A.2d 1355, 1359 (N.J. Sup. Ct. App. Div. 1992) (holding that

"rights and b enefits granted by [analogous state law] should not

depend on the sophistication of the employee").

Congress enacted the FMLA in order " t o entitle employees to

take reasonable leave for medical purposes." 29 U.S.C.

§ 2601(b)(2) (emphasis added). Its legislative history discloses

t hat it "is based on the same principle as the child labor laws,

the minimum wage, Social Security, the safety and health laws, the

pension and welfare benefit laws, and other labor laws that

establish minimum standards for employment." S. Rep. No. 3 at 4,

reprinted in 1993 U.S.C.C.A.N. 3, 6-7. Significantly, none of

these other federal labor laws granting benefits to employees

requires those employees to refer to the specific statute, much

less the specific statutory subsection, in order to avail12

themselves of its benefits. We do not believe Congress intended to

depart from this practice and require employees to consult

a ttorneys before notifying their employer of their need for FMLA

leave.

Furthermore, contrary to Westlake's suggestion, permitting

employees to avai l themselves of the FMLA's protection without

expressly invoking the statute does not leave employers such as

Westlake with out protection from abuse of the Act's generous

provisions, nor does it r equire employers to engage in intrusive

inquiries to determine whether the FMLA applies. The Act permits

employers notified of an employee's intent to take leave due to a

serious health conditi on to require the employee to provide

certification from a physician. See 29 U.S.C. § 2613(a). If the

employer has reason to doubt the validity of the certification, it

may ask for a second opinion from a different physician. 29 U.S.C.

§ 2613(c). If the second opinion differs from the first, the

employer may require a third opinion. 29 U.S.C. § 2613(d).

Moreover, the employer may require recertification on a reasonable,

on-going basis. 29 U.S.C. § 2613(e). In short, the FMLA provides

safeguards from delinquent employees, but express not ice by an

employee that she takes leave pursuant to the FMLA is not one of

those safeguards.

We hold that the Family and Medical Leave Act of 1993 does not

require an employee to invoke the language of the statute to gain

its protection when notifying her employer of her need for leave

for a serious health condition.3 We express no opinion regarding whether the complications

arising from Manuel's surgery for her ingrown toenail constitute a

"serious health condition."

13 C.

We decline to announce any categorical rules for the content

of the notice by an employee. When an employee cannot give 30-days

advance notice of the need for FMLA leave, the FMLA requires notice

"as is practicable." 29 U.S.C. § 2612(e)(2)(B). What is

practicable, both in terms of the timing of the notice and its

content, will depend upon the facts and circumstances of each

individual case. The critical question is whether the information

imparted to the employer is sufficient to reasonably apprise it of

the employee's request to take time off for a serious health

condition. Accord D'Alia , 614 A.2d at 1359.

III.

Congress, in enacting the FMLA, did not intend employees like

June Manuel to become conversant with the legal intricacies of the

Act. The district court erred by requiring such knowledge. We

leave to the district court the question of whether Manuel gave

Westlake sufficient notice under the FMLA. 3

REVERSED and REMANDED.