Employers Must Follow the Notice Requirements of the Federal FMLA
By Anne-Marie L. Storey, Esq.
A recent decision interpreting the federal FMLA (from another jurisdiction) provides a good reminder of an employer’s notice obligations under that law.
The employer in that case had a general FMLA notice in its employee handbook and also posted the DOL’s FMLA poster. However, when one of its employees took FMLA leave, the employer did not provide the employee with a notice of eligibility and rights and responsibilities or a designation notice. The employee took her entire 12 weeks and was then terminated when she failed to return to work. She filed an FMLA interference claim and won summary judgment on the basis that the employer failed to provide the individual FMLA notices required under the regulations.
The regulations require individual notice to an employee when FMLA leave is requested or when the employer knows that an employee’s leave may be for an FMLA qualifying reason. This should include 1) notice of eligibility; 2) notice of rights and responsibilities; and 3) designation notice. The eligibility notice is the written notification to the employee of his/her eligibility to take FMLA leave. This generally has to be provided within five business days of the initial request for leave or when the employer determines that an employee leave may be for an FMLA-qualifying reason. 29 C.F.R. 825.300(b)(l). The notice should inform the employee of his/her eligibility status; if the employee is determined not eligible for FMLA leave the notice must state at least one reason why. The rights and responsibility notice must also be in writing and include a specific list of information, including notice that the leave may be counted as FMLA, the designated 12-month period for counting FMLA entitlement, and several additional details. 29 C.F.R. 825.300(c)(1). The designation notice must also be in writing and must be provided within five business days of having enough information to determine whether the leave is FMLA-qualifying. This notice, among other things, must inform the employee whether the leave will be designated and counted as FMLA leave. 29 C.F.R. 825.300(d)(1)(4).
As the case at issue here reminds us, failure to follow these very specific notice requirements may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights and may result in liability for various damages, including compensation and benefits lost by reason of the violation, other actual monetary damages sustained as a direct result of the violation, and for equitable or other relief, including employment, reinstatement or promotion.
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