An employer “who makes an affirmative representation that an employee reasonably and detrimentally believed” was a grant of leave under the Family and Medical Leave Act cannot later argue that the employee was not in fact entitled to that leave because she did not suffer a serious health condition, the Eighth Circuit rules. However, the Court also decides that the employee must first trigger FMLA protection by providing her employer with notice that she may need FMLA leave.

The case involves a cross appeal involving an employee who was terminated after taking leave that her supervisor had initially approved but which the company’s HR department later denied. The employee had taken approved FMLA leave to care for her ill husband, which expired upon his death. Her supervisor then asked her if she needed additional leave, and she assented, asking for another 30 days of leave. Her supervisor responded with the comment “okay, cool, not a problem, I’ll let HR know.” The Court agrees that this is a sufficiently definite representation that the leave was granted.

The Court also looks at whether the employer was on notice that the employee was suffering from her own serious health condition due to her bereavement, and points to facts demonstrating the employer’s awareness of her mental condition: her supervisor was aware that the employee’s husband, who had worked with her for many years, died unexpectedly; that the employee was noticeably distraught; and that the employee was unable to work the night shift because it reminded her too much of her husband.

In sending the case back for a new trial, the Eighth Circuit orders the district court to properly instruct the jury on the employee’s duty to put the employer on notice of the need for FMLA leave, and that the employee must have reasonably believed that the company represented that it granted her FMLA leave, as opposed to some other type of leave. Murphy v. FedEx National LTL Inc.