Here’s a shout out to all you employers out there who forget to send your employees the proper FMLA notices when they seek leave for a reason covered by the FMLA. Occasionally, the courts have your back, despite your lack of attention to detail.
As I have discussed before, when an employer is put on notice that an employee needs leave for a reason that may be covered by the FMLA, the employer has an obligation to provide the employee a Notice of Eligibility and Rights & Responsibilities Notice (which usually is accompanied by a blank medical certification form). Once you have sufficient information from your employee to determine whether the absence qualifies under FMLA, then you send your employee a Designation Notice. If you don’t send these notices to your employees, you risk an FMLA violation. Ask Wackenhut, which was held liable in an an FMLA interference lawsuit simply because it failed to provide these standard FMLA notices.
But then comes Scott Bellone v. Southwick-Tolland Regional School District (pdf). In Scott’s situation, he didn’t receive a proper Notice of Eligibility. In fact, when he sought a leave of absence, the “Notice” he received with his blank medical certification form could not remotely be considered a Notice of Eligibility, since the document essentially said nothing more than, “Hey, Scott, fill this [medical certification] form out and get it back to us in 15 days.” [Well, it didn't really say that, but I'm not far off. Here's an original copy of it.]
When Scott returned the medical certification completed by his health care provider, the employer did not send him a designation notice right away. In fact, it waited until his 12 weeks of FMLA leave were exhausted, and then waited another four weeks. At that point, it sent him the Designation notice, which retroactively designated the previously exhausted 12-week period as FMLA leave.
Scott was terminated a short time later for reasons not directly related to his leave of absence. When he filed suit against his former employer, he claimed — among other things — that his employer violated the FMLA because it did not provide him proper or timely FMLA notices. Had he known that the absence was being classified as FMLA leave, so he argued, he would have planned out his leave of absence in a manner which would have allowed him to use some leave time later.
Employee Must Show Failure to Provide FMLA Notices Harmed Him
Had Scott brought this case before Wackenhut court (see case reference and link above), his FMLA claim might have had some legs to run. But the court reviewing Scott’s claim took a far more pragmatic approach (and one I wish the DOL would endorse). On one hand, the employer technically violated the FMLA when it failed to provide Scott proper and timely FMLA notices. On the other hand, however, Scott took about 16 weeks of leave, which outstripped the 12 weeks provided for under the FMLA. Thus, the deciding factor for the court was that Scott failed to provide any evidence that he actually could return before his leave ended or that he would have structured his leave differently had he been provided appropriate notice. The Court put it this way:
the School District came forward with affirmative evidence demonstrating that [Scott] was unable to return to work before the end of the academic year. At that point, it was up to [Scott] to establish a genuine issue for trial by presenting more than just a bare allegation that he could have done things differently if he had known that his leave would count toward his FMLA entitlement.
For the court, ”nothing was lost, nor was any harm suffered, by reason of the [failure to provide proper and timely notices].” In short, the court adopted the approach taken by the U.S. Supreme Court in Ragsdale v. Wolverine Trading (ultimately adopted in the changes to the 2009 FMLA regulations), which held that late or inadequate notices are not actionable unless they harm the employee.
Insights for Employers
The employer dodged a bullet here. I share this case not to highlight employer best practices [clearly, the employer's actions here are not a model for us to follow], but as a reminder that the way to go — indeed, the best practice — is to provide proper and timely FMLA notices. When we receive notice of the need for leave that may be covered by FMLA, we provide the Notice of Eligibility and Notice of Rights and Responsibilities. When we have enough information from medical certification as to whether FMLA applies, we provide the Designation Notice.
If there are no exceptions to this practice, we stay compliant. And we avoid results like the one I highlighted in Wackenhut. This makes your risk managers happy. And you will pay your employment attorneys far less. [We'll get by...sob, sob...]