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Employment Blog

Employers Should Take Required FMLA Notices Seriously - But All Hope is Not Lost if Mistakes are Made

Authored by Ruder Ware Attorneys
Posted on May 13, 2014
Filed under Employment

When an employee requests a leave of absence that may be for an FMLA-qualifying reason, his or her employer is required to provide notice to the employee of eligibility for leave under the FMLA (as most employers are aware, the Department of Labor has created a handy-dandy form to accomplish this purpose - WH-381).

The purpose of the eligibility notice is straightforward - to inform the employee about whether he or she meets the requirements to be eligible for leave under the FMLA (e.g., worked the required number of hours). At the same time, an employer is also required to provide an employee with notice of his or her "rights and responsibilities," if ultimately qualifying for FMLA leave (this notice is conveniently combined with the notice of eligibility within form WH-381). Typically, employers also include a request for medical certification that the employee's request for leave is for an FMLA-qualifying reason. This notice must be provided to employees within five business days. Finally, if the employer determines that the leave request is FMLA qualifying, it must provide an employee with a notice designating leave as FMLA qualifying (again, within five business days). Occasionally, an employer may require an employee to submit to a "fitness-for-duty" exam at the conclusion of the FMLA leave - and this must be noted in the designation notice (form WH-382). An employer who fails to meet these notice obligations risks an "inference with FMLA rights" lawsuit and significant financial exposure.

However, a recent case is a good reminder that technical notice violations do not always spell disaster for employers because employees must show that technical violations prejudice them. In Bellone v. Southwick-Tolland Regional School District, the court determined that although the employer failed to provide the required eligibility notice, and also failed to timely provide the correct designation notice (it provided the notice designating the leave as FMLA qualifying about one month after the employee exhausted his 12 weeks of FMLA leave), the employee could not prove that he was harmed in any way by the deficient and untimely notices. In Southwick-Tolland Regional School District, the employee could not show harm because he failed to offer any evidence that he could have returned to work during his leave, or that he would have structured his leave any differently had he received proper and timely notice.

This case is a good reminder to employers that strictly observing the FMLA notice requirements is not just a bunch of Bellone.