Business Tips:
How to Avoid Litigation Under the FMLA Individualized Notice Requirements

To protect your business from employment litigation, a business owner should strictly adhere to the rules under The Family and Medical Leave Act (“FMLA” / “Act”). By simply neglecting one aspect of compliance, the court can find your business in violation of the Act. The FMLA is a federal law overseen by the Department of Labor. The rules apply to employers with fifty or more employees. The Act allows for up to twelve weeks of protected leave during a twelve month period, but only when certain requirements are met. Below are points that can assist business owners in managing the FLMA notice requirements:

1. Posting General Notice & Handbook
An employer covered by the FMLA is required to publically post a general notice explaining the Act. The general notice may be posted electronically or as a poster. The general notice must also be included in the employee handbook or in any other written form and distributed to employees.

2. Individualized Eligibility Notice
When an employee requests leave under the Act, or when the employer learns that an employee’s leave may be for a qualifying reason, the employer must notify the employee of his or her eligibility or non-eligibility. The intention of this notice is to provide a “general notice” regarding eligibility under the Act, and unless there are extenuating circumstances, the notice must be submitted within five business days.

3. Individualized Designation Notice
When the employer has adequate information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must again notify the employee. This “individualized designation notice” should include whether the leave will be designated and counted as FMLA leave. Unless there are extenuating circumstances, this notice must be provided to the employee within five business days. Any employee requirements – such as taking paid leave or fitness-for-duty certification upon return – must be stated in the individualized notice.

4. Consequences: Using Employee Handbook as Method of Notice; Failing to Provide Notice
Failure of the employer to comply with the notice requirements may result in liability for compensation, benefits lost due to the violation, or other damages. In a recent case, an employee notified her human resources department prior to taking pregnancy leave. The employer, however, failed to formally classify the employee’s leave as “FMLA leave.” Also, the employer did not provide the individualized notice. When the employee returned to work after her leave, she was terminated. The employee asserted that the employer’s failure to formally classify the leave interfered with her rights and prevented her from making informed decisions. In the same case, the employer never gave the employee an eligibility notice, a rights and responsibilities notice, nor a designation notice notifying her of when leave expired, or when she would be required to return to work. The court held that the information contained in the employee handbook did not satisfy the individualized notice requirements, that the employee was prejudiced by the lack of notice, and that she had been unlawfully terminated.

The Department of Labor has published numerous posters, prototypes, notices, etc. that may be used by employers. https://www.dol.gov/whd/fmla/