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Everyone one of us has been there.

Your employee, Johnny, takes a leave of absence because he stubbed his toe at work, resulting in a lengthy worker’s 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 month leave as FMLA leave.

First, a little pat on the back. We’ve all been there, kid.

What You Should Have Done

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.

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

Literally sent her nothing.

Jeanette 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 Failure to Provide FMLA Notices Harmed Her

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

On the other hand, Jeanette 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 Notice 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 worker’s 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 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 Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.

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