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Case: Employer failed to provide notice of employee FMLA rights

Technical violation did not result in interference – this time

Posted September 8, 2022

After a cancer diagnosis in April, Norvel began asking Patrick, his supervisor, for leave paperwork, as the doctors wanted to begin high-dose chemotherapy treatment as soon as possible, and he had a six-month window in which to begin treatment. Patrick responded that he didn’t think the company offered FMLA, but Norvel kept asking until July.

In July, Norvel had a medical emergency requiring surgery, which delayed treatment. When he returned to work, he provided a note to the HR manager which also asked for FMLA paperwork, as his chemotherapy was now to begin on July 15th. This was the first time the HR department heard about his cancer.

On July 20, just after Norvel requested FMLA leave following his emergency surgery, the company laid off 41 of its then-109 employees. Norvel was included, and no one who made that decision knew about his condition. His chemotherapy was again delayed by an infection and was now to begin on August 15. Norvel indicated he could work until then or he could draw unemployment.

He ended up filing a suit, arguing that, because he was not given notice of his FMLA rights, the employer interfered with his rights. Had he been given such notice, he would have begun treatment earlier.

The case went back and forth, and ultimately, the employer won the interference claim. The latest court indicated that, while the employer did fail to notify him of his FMLA rights, Norvel was not harmed by the failure.

One of the judges, however, dissented with the ruling, pointing out that, had Norvel been given such notice, he would have begun treatment sooner. He asked for leave paperwork for three months, delaying the treatment, so he was harmed by the notice failure.

Fairmont Tool, Inc. v. Opyoke, State of West Virginia Supreme Court of Appeals, No. 20-1042 June 9, 2022.

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

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