Employers must provide employees with adequate FMLA notice

Failure to give full information puts companies at risk for violation charges

Posted August 12, 2016

Providing employees an eligibility/rights and responsibilities notice and a designation notice for time off under the Family and Medical Leave Act (FMLA) might seem rather mundane and little more than simple paperwork, but the Department of Labor’s Wage and Hour Division (WHD) is taking the requirement seriously. So are the courts.

In a recent case, an employee with depression was instructed by a health care provider to take 30 days off to undergo an in-patient program for his condition. The employee was admitted to a hospital on November 10, but the employee refused to remain for the entire 30 days, expressing concern that too much time off from work would cause him to lose his job. He was discharged from the hospital on November 13.

Around that time, the employee submitted an application for short-term disability, which also functioned as a request for FMLA leave. To that application, the employee attached a physician’s statement from his primary care doctor taking him out of work from November 10 to December 10. The company determined and notified the employee that he was eligible for FMLA leave through December 10. Nonetheless, still fearing for his job, the employee returned to work on November 16.

Subsequently, the employee missed work for reasons unknown, and one day was instructed to complete a performance improvement plan. Contending that he was unable to complete the plan, the employee left work without authorization. He was terminated that day for failing to properly communicate unscheduled time off, and insubordination regarding the performance improvement plan.

The employee sued, arguing that he never received information regarding his reemployment rights under the FMLA. The employer argued that it sent the applicable notice on November 16, but the notice the company claimed to provide did not reference the employee’s job protection rights. The employee contended that knowing about the job protection rights would have answered his concerns regarding his job.

The employer also argued that, in any event, it granted the employee his FMLA leave, and let him know how much leave he had available, so no harm, no foul.

The court, however, indicated that, even if an employer provides the leave, it may still face challenges if it does not provide the appropriate information. In this case, the rights and responsibilities notice was insufficient. It needed to include the employee’s right to restoration to the same or an equivalent job upon return from leave.

The employee indicated that, had he received such information, he would have structured his leave differently — he would have taken all 30 days for the treatment. Therefore, he was prejudiced by the lack of information in the rights and responsibilities notice. In fact, after he was terminated, he did complete the treatment program.

Employers need not use the WHD’s model notices, but they still need to provide the appropriate information. Failure to do so can, by itself, be seen as a violation.

Vannoy v. The Federal Reserve Bank of Richmond, Fourth Circuit Court of Appeals, No. 14-2375, June 28, 2016.

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

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


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