FMLA Articles

Resignation or FMLA leave request


Key to remember:  Miscommunication can lead to all sorts of issues, and this time the employee’s miscommunication led to an employer’s win in court.

Applies to: All public employers and private employers with 50 or more employees.

Impact to customers: Customers can use this case to better understand how to respond to an employee’s comments that appear to indicate resignation.


Burnout causes many issues. For Blake, a firefighter-paramedic, it spurred miscommunication that led to his unwanted resignation. On August 21, Blake worked a scheduled 24-hour shift. The morning of August 22, before he finished his assigned shift, Harry, his supervisor, told Blake that he needed to work another 24-hour (overtime) shift. This resulted in Blake working a 48-hour shift from 8:00 A.M. on August 21, through 8:00 A.M. on August 23, followed by another already scheduled 48-hour shift from 8:00 A.M. on August 24, through 8:00 A.M. on August 26.

After being informed of the additional shift, Blake told Harry that he “couldn’t do it anymore” and that he “would turn his stuff in if he needed to.”

This statement led Harry to wonder what Blake meant. Blake didn’t explicitly say the words quit or resign, but, generally, it was understood that when you leave employment, you turn your stuff in. The employer asked if Blake would like to put his intentions in writing, but Blake declined. Harry asked Blake if he intended to work two weeks, and Blake replied “no.”

Two other officers told Harry that Blake had been severely burned out lately and that Blake’s decision was not permanent.

Despite this, and further conversations between Blake and Harry, Blake did not retract his initial statement or request leave, but Blake did mention that he would need to speak with his wife and “figure this out.”

Blake came away from the conversations with the impression that he was welcome to return to work for his next scheduled shift and that something would be worked out, such as being transferred to a less-stressful position and being referred to the EAP for assistance.

The employer, on the other hand, had a different impression. Following the last conversation, Blake was told that his verbal resignation was accepted and that he should turn in his gear.

Blake sued, arguing that he hadn’t resigned, he had asked for FMLA leave. The employer argued that Blake never put it on notice of the need for leave.

The court agreed with the employer, indicating that Blake did not show that his burnout symptoms rendered him incapacitated, as required to give rise to a qualifying FMLA condition. It also agreed that Blake never provided notice of the need for leave. Instead, his statements appeared to convey his intent to resign.

Friends, The FMLA does not require employers to divine unspoken (and even unthought) requests for FMLA leave. In this case, the employee didn’t ask for leave at all. Not all situations are this clear cut, however.

Blake v. City of Montgomery, 11th Circuit Court of Appeals, No. 20-14229, November 8, 2021.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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