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Viewpoint: When Employers Fail to Designate FMLA Leave

In some situations, it's advisable to make a retroactive designation

A book with the word fmla on top of it.

Your employee, Johnny, takes a leave of absence because he stubbed his toe at work, resulting in a lengthy workers' compensation absence. For one reason or another, Johnny's one-week leave of absence turns into one month, then six months.

One night, right about the time Johnny is nine months into a leave of absence, you wake up in a cold sweat, realizing for the first time that you completely forgot to designate any of Johnny's nine months away as leave taken under the Family and Medical Leave Act (FMLA).

What You Should Have Done

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 of Rights and Responsibilities under the FMLA (which is usually 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.

But take some heart in a recent FMLA case, Jeanette Jergens v. Marias Medical Center. In Jergens' situation, she took a leave of absence for alleged anxiety which, interestingly enough, coincided with her employer's decision to keep her on an administrative leave of absence while it investigated her alleged workplace misconduct. However, Jergens' employer failed to provide her with a Notice of Eligibility. It didn't send her a medical certification form and a designation notice, either.

It literally sent her nothing.

Jergens was terminated a short time later for reasons not related to her leave of absence. When she filed suit against his former employer, she claimed—among other things—that her employer violated the FMLA because it did not provide her proper or timely FMLA notices.

Employee Must Show Notice Failure Caused Harm

The court reviewing Jergens claim took a rather pragmatic approach. On one hand, the employer technically violated the FMLA when it failed to provide Jergens with proper and timely FMLA notices, but this inaction does not create a standalone FMLA claim.

On the other hand, Jergens failed to provide any evidence that she actually was harmed by the employer's failure to provide proper notice. For the court, nothing was lost, nor was any harm suffered, by reason of the failure to provide proper and timely notices.

Case dismissed.

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 of Rights and Responsibilities.
  • When we have enough information from medical certification as to whether FMLA applies, we provide the Designation Notice.

Let's dig in a bit more though.

Catching the Oversight Soon Enough

If we have missed the deadlines to provide the appropriate FMLA notices, but we have no reason to believe that the employee has suffered any harm because of our oversight, it typically makes sense to retroactively designate FMLA leave. This is particularly true in workers' compensation situations where you likely will be able to show through documentation that the employee was never released to return to work. In these situations, I'm generally comfortable with a retroactive designation.

Catching the Oversight Much Later

But what if we're faced with a situation like Johnny's above, where we are nine months out before we realize our miscue? Do we really revisit the FMLA?

When we are picking up the pieces some nine months after the fact, I am far more focused on whether we have an obligation under the Americans with Disabilities Act (ADA) to provide additional leave than any FMLA obligation. As a practical matter, it's nearly certain that the employee isn't even eligible for FMLA leave (they've not worked 1250 hours in the previous 12 months).

My focus at this point is determining whether we can obtain information from the employee's physician regarding whether the employee will be able to return to work in the immediate future. If not, I am looking for an exit strategy.

Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where this article originally appeared. © 2021 Jeff Nowak. All rights reserved. Republished with permission.

[Visit SHRM's resource page on the Family and Medical Leave Act.]


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