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Leave Rights Under The Family and Medical Leave Act: Employers Do Not Have A Right To Remain Silent

By October 1, 2013No Comments

ID-10057279The law creates a right for qualifying employees to take up to 12 weeks of leave in a 1 year period to deal with certain events: deal with a disabling illness, a family member’s serious illness, or the arrival of a new daughter or son.  FMLA leave can be taken all at once, or on an intermittent or part-time basis.  Employers are supposed to post a notice in the workplace outlining the pertinent provisions of the law so qualifying employees have information about their leave rights. That’s enough to comply with the statute, right?

Probably not!  While the statute is somewhat ambiguous, according to an expanding line of regulations and judicial opinions an employer can not remain silent when it has some reason to believe that FMLA leave may apply to an employee’s request for time off – even if employee does not cite the FMLA statute.  The cases suggest that an employer is required to give employees individualized notice of their leave rights under the FMLA each time leave is requested.   Stated another way, if the employer has reason to believe the FMLA may apply, the cases suggest that an employer has a responsibility to affirmatively explain to an employee whether and how FMLA applies in response to each leave request made by the employee.

You have probably seen the ubiquitous employee rights poster in the break rooms and office kitchens of places you have worked.  You may have seen FMLA leave language mentioned in employee handbooks or other written guidance provided by an employer.  These are not the end of the disclosure obligations of an employer.

Federal regulation outlines that when an employee asks for FMLA leave, or indeed any time an employer has knowledge that a leave might qualify for FMLA coverage, the employer has an affirmative obligation to notify the employee of his or her eligibility for the leave.  29 C.F.R. 825.300.  

Hence it may not be enough to just publish generic posters and circulate employment handbooks, employers subject to the law must provide individualized notice of FMLA rights when an employee requests or takes leave and there is sufficient information to suggest that FMLA may apply.  Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, (2002).

And since FMLA leave can potentially be taken on a part-time or intermittent basis, requests for leave which only span a few hours of a particular day or seem very limited in scope (like requested time off for a doctor visits, or for medically related rest) appear to mandate a duty of the employer to give the employee notice of her FMLA rights.  DeFilippo v. CBS Corporation, d.b.a. WBZ-TV, United States District Court District of Massachusetts, Case # 12-11109-JGD (Sept. 3, 2013 motion ruling).

Failing to advise an inquiring employee who is eligible for FMLA leave of her right to the leave can be considered a denial, restraint, or interference with the employee’s FMLA rights.  A lawsuit over a violation of the FMLA normally must be filed within 2 years after the date of the last event constituting the violation, although in cases where an employer willfully violates the law, a lawsuit may be brought within 3 years of the date of the last event constituting the violation. 

An employer found to have restrained, denied, or interfered with the exercise of FMLA rights can be held responsible for an employee’s lost wages and benefits, or actual losses like the cost of providing care (limited by statute to 12 or in some cases 26 weeks), plus a doubling of damages, along with reinstatement, interest, and possibly be made to pay the attorney fees and costs incurred by the employee. 

Furthermore, where an employee reasonably relies on his employer’s misstatements about his right to FMLA leave, some courts will even forbid an employer from benefiting from the normal deadlines (statutes of limitations) to bring an action for violating the FMLA – effectively extending the deadlines for an employee to file a lawsuit.  These remedies are all powerful enforcement rights for aggrieved employees, and strong motivators for employers to get it right the first time.

The FMLA does not apply to every employer or every employee, and each particular employer and employee’s situation will vary.  While the circumstances of every case are different, employers subject to the FMLA need to be attentive to the obligation to provide individualized notice of FMLA rights to employees who request or take leave.