Woe to Those Employers Who Fail to Comply With Technical Notice Requirements of the FMLA

Employment Law Alert

Many employers administering leave under the FMLA are ignorant of the following notices that must be provided to employees invoking FMLA leave rights:

Eligibility Notice: provided within five business days of a leave request informing the employee whether or not they meet the FMLA’s eligibility requirements. In most cases, this notice is sent the employer is in possession of a medical certification or other information needed to make a final determination whether leave request qualifies under the FMLA.

Rights and Responsibilities Notice: if the employee is eligible for FMLA leave, the eligibility notice must be accompanied by a Notice of Rights & Responsibilities Notice detailing the expectations and obligations of the employee (e.g., to submit a physician certification substantiating the need for the leave) and explaining any consequences for failure to meet these obligations.

Designation Notice: within five days of when an employer is in receipt of sufficient information to determine if the leave qualifies for FMLA, the employer must notify the employee i) whether the leave is qualifying and will be counted as FMLA; ii) whether a fitness-for-duty certification will be required upon a return to duty; and iii) of the amount of leave that will be counted towards the employee’s 12-week leave entitlement.

Although employers are free to create their own forms so long as they are compliant with the FMLA’s regulations, prudent employers may opt to utilize the compliant forms issued by the U.S. Department of Labor, Forms WH-381 (Notice of Eligibility/ Rights & Responsibility Notice) and WH-382 (Designation Notice).

A recent decision out of the United States District Court, District of New Jersey, illustrates that an employer’s failure to comply with the regulatory notice requirements may prove fatal. In , the plaintiff, Jacqueline Young, took maternity and childcare leave from June to November, 2009, well in excess of her 12-week FMLA leave entitlement. Although Young gave advance notice of her intent to take leave, she never received an individualized written notice from Wackenhut advising that her leave was being classified as an FMLA leave, that she was expected to submit a fitness for duty certification upon her return to duty, or the date when her FMLA leave would be exhausted. Finally, in a November 30, 2009, telephone conversation with company representatives, Young was told for the first time that her FMLA leave time was exhausted and that a fitness for duty certification would be required before she reassumed her job duties. However, Wackenhut did not tell Young the date that she was expected to return to duty, nor did they advise Young that if she did not return by a certain date she would be terminated. Young was terminated the next day and filed suit alleging that Wackenhut’s failure to provide the required notices interfered with FMLA rights by preventing her from making informed decisions about her FMLA leave and structuring her leave time and return to duty in a way that would have secured her position.

The court denied Wackenhut’s effort to dismiss the case on summary judgment. In so doing, it rejected the company’s argument that its summary of FMLA rights provided in the employee manual and its FMLA poster located in a visible area satisfied the FMLA’s notice requirement, noting that these actions only satisfied the General Notice requirements of the FMLA regulations. However, Wackenhut failed to provide Young with the eligibility, rights and responsibilities and designation notices and thus failed to comply with the “individualized notice” requirements of the FMLA.

Finally, while recognizing that a failure to provide the required notices does not automatically mandate a finding that an employer interfered with an employee’s leave rights, the court reasoned that in this instance there was sufficient evidence showing that Young was in fact substantively prejudiced by Wackenhut’s violation of the FMLA notice requirements. Had Young been advised of the date when her FMLA entitlement would be exhausted, as well as the date on which she was required to return to duty or face termination, she would have had an opportunity to structure her leave differently in a way that left her protected under the FMLA. The fact that Young’s leave exceeded the FMLA’s leave entitlement was immaterial – the relevant inquiry is whether Young could have modified her leave plans to protect herself had she been provided with ample information from her employer at the outset of the leave. Wackenhut’s failure to do so permitted Young to move forward with her claim that the company unlawfully interfered with her leave rights under the FMLA.

This decision illustrates the consequences employers face if they fail to familiarize themselves with and implement the simple notice requirements when administering leaves under the FMLA. Employers—especially those lacking practical experience in FMLA notice compliance—should consult with employment counsel immediately whenever the employee is on notice, directly or indirectly, that an employee is in need of a leave of absence that may qualify under the FMLA.

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