Employers must provide employees with FMLA eligibility information

Communication should include the specific amount of leave available

Posted February 9, 2017

The Family and Medical Leave Act (FMLA) dictates that employers provide certain information, including how much leave to which they are entitled, to individual employees. This information is generally captured in an eligibility/rights & responsibilities notice and a designation notice. While the Department of Labor (DOL) provides model forms for you to use, you are not required to use them. If you use others, the forms would still need to meet the regulatory requirements and contain certain information. Also, if the employee’s situation changes, you could have more notice obligations. Failing to provide the appropriate information can be risky.

Case in point

A long-term employee requested FMLA leave. The employer provided the employee with a packet of information, including a “Family/Medical Leave Request” form, a “Leave Designation/Employee Acknowledgment of Obligations” form, and a certification form. The employee signed and acknowledged receipt of these forms.

As is sometimes the case, the employee’s certification did not indicate a specific return-to-work date; it simply indicated “undetermined.” While on leave, the employee was scheduled for two surgeries, the required time off would exceed her 12 weeks of FMLA leave. The employee notified the company of the revised return-to-work date, but no one from the company discussed this with the employee. A couple months later, the company did ask the employee if her return date had changed, and the employee indicated that the latest return date she had provided had not changed.

The same day as that conversation, the company sent a letter to the employee, indicating that she had exhausted her FMLA leave and that she was being terminated. After undergoing her surgeries, the employee filed a claim.

The employee argued that the company never gave her proper FMLA notice – it never told her that the latest return date exceeded her 12 weeks of FMLA leave. If the company had informed her of this, she would have structured her leave differently to prevent losing her job.

The employer argued that it did give the employee proper FMLA notice. In one of the forms was information about the FMLA and that up to 12 weeks of leave was available. It also argued that the employee stated she was unable to return to work after the first surgery, so she could not have structured her leave differently.

While the employer appropriately provided an eligibility notice, the court found that the employer had failed to satisfy the individualized information required in the rights and responsibilities notice and the designation notice. The document titled “Leave Designation/Employees Acknowledgment of Obligations” stated that the employee was eligible for FMLA leave and that the leave would be counted as FMLA leave. The form did not, however, specifically state that the employee was eligible for the full 12 weeks, and it did not identify the 12-month period in which the leave was calculated.

The regulations require an employer to provide the number of hours, days, or weeks that will be taken as FMLA leave. The company didn’t have this information at the beginning of the leave, but it obtained it from the employee at a later date. The court pointed out that the FMLA requires employers, in the event of change in the designation notice, to provide, within five business days of receipt of the employee’s first notice of need for leave subsequent to any change, written notice of the change. The employee’s information was a change in status and it gave the company enough information to know that the employee would exhaust her 12 weeks of FMLA leave before her anticipated return date. Yet, the company did not contact the employee.

In ruling against the employer, the court indicated that it should have done the following:

  • Tell the employee what specific amount of leave was available to her,
  • Provide the change in designation notice after receiving information regarding her delayed return date, and
  • Communicate the critical information that the FMLA would not provide all the requested leave.

The justification for this type of communication with the employee is to provide her with the opportunity to make informed decisions about her leave options and limitations.

Ross v. Youth Consultation Service, Inc., U.S. District Court of New Jersey, No. 2:14-2229, December 29, 2016.

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

Essentials of FMLAJ. J. Keller's Essentials of FMLA manual helps HR pros understand and comply with the FMLA rules, control costs related to leave taken, and minimize the law's potential disruption to their organizations' operations.


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