Failure to provide FMLA designation notice lands employer in court

Company found guilty of interfering with employee’s rights

Posted January 26, 2017

When an employee puts you on notice of the need for leave, you must provide an eligibility/rights and responsibilities notice. When you have enough information to designate the leave as qualifying under the Family and Medical Leave Act (FMLA), you must provide a designation notice. These notices are not optional. If you fail to provide them, an employee could file a claim, and you could lose.

Case in point

A new hire needed leave before he became eligible for FMLA leave. The employee’s leave was, therefore, provided under the company’s policy, including disability benefits.

During one of his leave periods, however, he did meet the eligibility criteria (particularly the criterion of working for a company for at least 12 months). Despite this, the employer did not provide the employee with an eligibility/rights and responsibilities notice or a designation notice, and the employee took the employer’s lack of information at face value and assumed that he remained ineligible for FMLA leave. The company told him that they posted his job, and that he should seek a new position.

When the employee was ready to return to work, the company told him that that he needed a return-to-work release — assuming he found a new position.

The employee was curious about the FMLA leave, so he contacted the Department of Labor. The DOL told him that he had, indeed, become eligible for FMLA leave when he met the 12-month criterion. The employee passed this information to company officials, but they held to their understanding that he was not eligible for FMLA protections because he had not been working (he was on leave) when he reached the one-year milestone.

Eventually, the company relented and determined that its original view regarding the employee’s FMLA eligibility was incorrect, and that the employee would be restored to his position. The reinstatement, however, occurred two months after the employee was released to work. The employee filed suit, in part arguing that the delays of his reinstatement interfered with his FMLA rights.

While the court indicated that an employer may have a uniformly applied practice or policy that requires employees who take FMLA leave to provide a fitness-for-duty (FFD) certification before returning to work, there was a question as to whether the employer administered its policy uniformly. At one point, the employee was told not to provide an FFD until after he found a new position. The employer, however, argued that the delay in restoring the employee was because he did not provide a FFD certification.

The court ruled that the employer interfered with the employee’s rights when it failed to provide him a designation notice that included a requirement to provide an FFD certification, and then tried to hold the employee to that requirement. It also indicated that the company’s stated reason for not providing a designation notice — because of its mistaken belief that the employee’s leave was not covered by the FMLA — did not matter. The company had the duty to make a correct FMLA-eligibility determination and notify the employee of his eligibility, of the requirements that flowed therefrom, and of the consequences of failing to adhere to them. The employer did not meet these requirements. Even if the employer’s action was not necessarily intentional, the employer’s intent is irrelevant to an FMLA interference claim.

Take the FMLA notice requirements seriously; the courts do.

Casagrande v. Ohiohealth Corporation, et al., Sixth Circuit Court of Appeals, No. 15-3292, December 20, 2016

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

Family and Medical Leave Act (FMLA) Consulting ServicesJ. J. Keller's Family and Medical Leave Act (FMLA) Consulting Services can help your company ensure compliance with FMLA requirements and minimize the law’s burden to your organization.


J. J. Keller's FREE HRClicks™ email newsletter brings quick-read human resources-related news right to your email inbox.

Sign up to receive HRClicks™.

About the author:

Darlene Clabault

Darlene M. Clabault is a certified Professional in Human Resources and a senior editor at J. J. Keller & Associates, a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Clabault specializes in topics such as the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Affordable Care Act (ACA). She is the author of J. J. Keller’s FMLA Essentials and ADA Essentials guidance manuals, and a content resource for training, program administration services, and online management tools. For more information, visit