specific individual. If an employee fails to satisfy an employer’s internal notification
procedures, FMLA/WFLA leave may be delayed or denied, regardless of whether the
employee might actually qualify for leave. 29 C.F.R. § 825.303(c).
5
Thirty days’ advance notice is not required if childbirth is unexpected. In
such circumstances, the employee need only provide “such notice as is practicable.”
RCW 49.78.250(1).
16
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 35262-5-III
Espindola v. Apple King
But there is an important limitation to an employer’s ability to deny FMLA/WFLA
leave based on noncompliance with company policy. When an employer’s policy does
not comport with FMLA/WFLA standards for invoking leave (such as the standards for
invoking unforeseeable leave), an employee’s right to protected leave cannot be denied
based simply on noncompliance with the employer’s policy. See 29 C.F.R. § 825.304(e)
(“[T]he employer may take appropriate action under its internal rules and procedures for
failure to follow its usual and customary notification rules, absent unusual circumstances,
as long as the actions are taken in a manner that does not discriminate against employees
taking FMLA leave and the rules are not inconsistent with § 825.303(a) [allowing for
unforeseeable leave].”); see also 29 C.F.R. §§ 825.302(d), .303(c), .304(a). In
circumstances where the employer’s policy is insufficient, an employee’s notice
obligations are governed solely by the terms of the FMLA/WFLA.
Once an employee has provided appropriately timed notice that he or she “may”
have a condition that qualifies for FMLA/WFLA leave, the burden falls on the employer
to take action. 29 C.F.R. § 825.303(b); Lichtenstein, 691 F.3d at 303-04. The