Steve Aubuchon sued his former employer, Knauf Fiberglass, for violations of the Family and Medical Leave Act, 29 U.S.C. §§ 2601
et seq.,
and he appeals from the grant of summary judgment in favor of Knauf. So far as bears on this case, the Act entitles an employee to twelve work weeks of leave without pay during any twelve-month period if he needs the leave in order to care for his spouse’s “serious health condition.” 29 U.S.C. § 2612(a)(1)(C). A “serious health condition” is sensibly defined in a regulation issued by the Department of Labor to include “any period of incapacity due to pregnancy, or for prenatal care.” 29 C.F.R. § 825.114(a)(2)(ii); see
Navarro v. Pfizer Corp.,
It is important to note that if the required notice, whether 30 days or “as soon as practicable,” is not given, the employer can deny leave even if the spouse does have a serious health condition. See
Collins v. NTN-Bower Corp.,
Mrs. Aubuchon’s predicted date of delivery was August 19, 2000. Her pregnancy thus far had been uneventful. A day or two before the nineteenth she went into labor but it proved to be a false alarm and she did not go into “real” labor until September 1. The baby was born the next day and mother and child left the hospital on the fourth. At argument Aubuchon’s lawyer told us that Mrs. Aubuchon began to have contractions a month before her expected date of delivery, but there is no support for this in the record.
The plaintiff, Steve Aubuchon, first notified his employer orally that he wanted leave under the Family Medical Leave Act on August 21, shortly after the false labor. He did not give complications, false labor, or a serious health condition as a reason. He just said he wanted to stay home with his wife until she gave birth. Being pregnant, as distinct from being incapacitated because of pregnancy or experiencing complications of pregnancy that could include premature contractions which unless treated by drugs or bed rest might result in the premature birth of the baby, is not a serious health condition within the meaning of the statute or the applicable regulations. 29 C.F.R. §§ 825.112(c), 825.114(a)(2)(ii), (e) (“an employee who is pregnant may be unable to report to work because of severe morning sickness”);
Navarro v. Pfizer Corp., supra,
Maybe Mrs. Aubuchon did have a serious health condition connected with her false labor. The record contains a note from her doctor saying that she was experiencing “complications,” although they are not explained — but the note was submitted to Knauf after Aubuehon’s request for leave had been denied; and the employer has, as we said, a right to be notified of the existence of the serious health condition as soon as practicable. The requirement of notice is not satisfied by the employee’s merely demanding leave. He must give the employer a reason to believe that he’s entitled to it.
Collins v. NTN-Bower Corp., supra,
On September 1, Aubuchon followed up his oral request for FMLA leave by giving his employer a filled-in form that the employer furnishes for requesting such leave. But neither in that form, nor in subsequent communications with his employer prior to September 4, when his request for FMLA leave was denied, did Aubuchon *953 say that Ms wife was having complications. Meanwhile, he had not shown up for work since sometime before August 19, and his unexcused absence put him over the limit allowed to employees by Knaufs attendance policy and so Knauf fired him. Aubu-chon’s union grieved his discharge, and Knauf agreed to reinstate him without backpay, and this was done. But then the company discovered that Aubuchon had falsified his original employment application by failing to disclose that he had been fired by previous employers — for excessive absenteeism! — and so it fired him again, this time for keeps.
It wasn’t until after he was fired the first time that Aubuchon produced the note from his wife’s obstetrician saying that she had had complications in her pregnancy. That was too late, as we have said. Employees should not be encouraged to mousetrap their employers by requesting FMLA leave on patently insufficient grounds and then after the leave is denied obtaining a doctor’s note that indicates that sufficient grounds existed, though they were never communicated to the employer.
Aubuchon claims that basing a request for FMLA leave on patently insufficient grounds should operate as a signal to the employer that the employee may not understand the contours of the duty of notice. The employee may think that if his wife is having a complicated pregnancy he has only to tell his employer that he needs to stay home with his wife until the baby is born; he needn’t state a reason. Some of the regulations that the Department of Labor has issued suggest that merely by demanding leave, the employee triggers a duty on the part of the employer to determine whether the requested leave is covered by the FMLA. See 29 C.F.R. §§ 825.302(c), 303(b). That is an extreme position, as most leaves requested by employees are not based on a ground entitling them to leave under the FMLA, so that if the position were accepted the consequence would be to place a substantial and largely wasted investigative burden on employers. The position is rejected, rightly in our view, by the
Collins, Stoops,
and
Satterfield
cases that we cited earlier, and also by
Gay v. Gilman Paper Co.,
So that the scope of our holding is clear, we emphasize that the employee’s duty is merely to place the employer on notice of a probable basis for FMLA leave. He doesn’t have to write a brief demonstrating a legal entitlement. He just has to give the employer enough information to establish probable cause, as it were, to believe that he is entitled to FMLA leave. That is enough to trigger the employer’s duty to request such additional information from the employee’s doctor or some other reputable source as may be necessary to confirm the employee’s entitlement. 29 C.F.R. §§ 825.302(c), 825.303(b), 825.305(d);
Gavin v. Honda of America Manufacturing, Inc.,
It is worthy of note that Knauf did not rely on the absence of reasons, in Aubu-chon’s initial oral request for leave, as a basis for denying the request. Instead it had him fill out a form that required him to specify the medical condition that justi *954 fied his request. 29 C.F.R. § 825.302(d). He failed to do so. He had no excuse for the failure.
Aubuchon’s second claim- — -that the company retaliated against him when it fired him the second time, in violation of the FMLA, which forbids retaliation for invoking one’s statutory rights, 29 U.S.C. § 2615(a)(2);
Horwitz v. Board of Education of Avoca School
Dist.
No. 37,
AFFIRMED.