Employers' FMLA Notice Obligations Toward Employees
Under FMLA, employers have an obligation to provide individualized notice of FMLA rights to their qualifying employees who request medical leave. An employer's failure to advise an employee of her FMLA rights after she properly gave notice constitutes unlawful interference with her FMLA rights to that protected leave. To establish an interference claim based on failure to give notice, a plaintiff must show impairment of her rights and resulting harm. (Ragside v Wolverine World Wide, Inc. (2002). Harm is demonstrated if the employer's failure to advise the employee of her FMLA rights rendered her unable to exercise the right to FMLA leave in a meaningful way. Conoshenti v Public Serv. Elec. & Gas Co. (2004).
Many employers believe that simply including a paragraph or two about FMLA leave in a handbook is all they need to do with regard to all of their employees. However, this would of course not count as a required "individualized notice". Under the law, when an employee gives notice of FMLA related leave, the employer must provide each of the following FMLA notices:
(1) Eligibility Notice. Once an employee notifies an employer of an FMLA qualifying medical leave, including birth of a child, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days of determining that her leave may be for an FMLA qualifying reason, absent extenuating circumstances. 29 C.F.R. 825.300(b)(1).
(2) Rights and Responsibilities Notice. Whenever the eligibility notice is provided by an employee, employers shall provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. Employers are also expected to answer questions from employees concerning their rights and responsibilities under FMLA. 29 C.F.R. 825.300(c)(1)
(3) Designation Notice. Within five days of when an employer has enough information to determine whether the employee's leave is FMLA qualifying, the employer must notify the employee in writing as to whether the leave will be designated and counted as FMLA leave. 29 C.F.R. 825.300(d)(1)(4). If the employer will require the employee to present a fitness for duty certification before returning to work, the employer must provide notice of such requirement with the designation notice. 29 C.F.R. 825.300(d)(3). Further, the employer must notify the employee of the amount of leave counted against the employee's FMLA leave entitlement, and the date when the employee's FMLA leave will be exhausted and she will have to return to work.
The above requirement might at first seem cumbersome, but it really isn't. Communicating a qualifying employee's basic FMLA rights, number of days / hours of FMLA leave available, responsibilities and consequences of non-compliance, along with answering any questions should not be cumbersome to any HR professional or in-house attorney who has sufficient knowledge of FMLA.
One of the employers' favorite defenses in FMLA retaliation or wrongful termination cases is claiming that they didn't know that the employee needed FMLA leave because that employee never specifically asked for it. The courts often reject this argument because the FMLA law is quite favorable to employees in this type of situation. The relevant question is not whether the employee expressly requested FMLA leave, but, rather, whether a he exercised his right to leave and whether the purpose for the leave sought was a "qualifying FMLA purpose.(Faust case). (Faust, supra, at p. 885, italics added.) The relevant regulations provide that an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The mere mention of 'vacation,' other paid time off, or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying, and the employee communicates that reason to the employer. The employer should inquire further of the employee if necessary to determine whether the employee is requesting FMLA or CFRA leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information)." Thus, an employer bears a burden, under FMLA, to inquire further if an employee presents the employer with a CFRA-qualifying reason for requesting leave.
Many employers believe that simply including a paragraph or two about FMLA leave in a handbook is all they need to do with regard to all of their employees. However, this would of course not count as a required "individualized notice". Under the law, when an employee gives notice of FMLA related leave, the employer must provide each of the following FMLA notices:
(1) Eligibility Notice. Once an employee notifies an employer of an FMLA qualifying medical leave, including birth of a child, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days of determining that her leave may be for an FMLA qualifying reason, absent extenuating circumstances. 29 C.F.R. 825.300(b)(1).
(2) Rights and Responsibilities Notice. Whenever the eligibility notice is provided by an employee, employers shall provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. Employers are also expected to answer questions from employees concerning their rights and responsibilities under FMLA. 29 C.F.R. 825.300(c)(1)
(3) Designation Notice. Within five days of when an employer has enough information to determine whether the employee's leave is FMLA qualifying, the employer must notify the employee in writing as to whether the leave will be designated and counted as FMLA leave. 29 C.F.R. 825.300(d)(1)(4). If the employer will require the employee to present a fitness for duty certification before returning to work, the employer must provide notice of such requirement with the designation notice. 29 C.F.R. 825.300(d)(3). Further, the employer must notify the employee of the amount of leave counted against the employee's FMLA leave entitlement, and the date when the employee's FMLA leave will be exhausted and she will have to return to work.
The above requirement might at first seem cumbersome, but it really isn't. Communicating a qualifying employee's basic FMLA rights, number of days / hours of FMLA leave available, responsibilities and consequences of non-compliance, along with answering any questions should not be cumbersome to any HR professional or in-house attorney who has sufficient knowledge of FMLA.
One of the employers' favorite defenses in FMLA retaliation or wrongful termination cases is claiming that they didn't know that the employee needed FMLA leave because that employee never specifically asked for it. The courts often reject this argument because the FMLA law is quite favorable to employees in this type of situation. The relevant question is not whether the employee expressly requested FMLA leave, but, rather, whether a he exercised his right to leave and whether the purpose for the leave sought was a "qualifying FMLA purpose.(Faust case). (Faust, supra, at p. 885, italics added.) The relevant regulations provide that an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The mere mention of 'vacation,' other paid time off, or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying, and the employee communicates that reason to the employer. The employer should inquire further of the employee if necessary to determine whether the employee is requesting FMLA or CFRA leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information)." Thus, an employer bears a burden, under FMLA, to inquire further if an employee presents the employer with a CFRA-qualifying reason for requesting leave.