A federal court in New Jersey has ruled that an employer violated the Family and Medical Leave Act (FMLA) by failing to send a revised Designation Notice when the employee’s return-to-work date changed, even though the expected return date far exceeded her available FMLA time.
FMLA Leave Runs Over
After employee Janet Ross requested FMLA leave for a hip ailment, the employer sent her a variety of forms, including their internal “Family/Medical Leave Request Form” and the standard “Certification of Health Care Provider Form.” Ross returned the forms, noting that her leave would begin on October 1, 2012, but her return-to-work date was “unknown.” The company then issued the FMLA “Designation Notice” verifying her eligibility for 12 weeks of job-protected leave and confirming that her expected date of return was unknown.
About two weeks later, Ross’s doctor provided updated documentation stating that Ross would be undergoing surgery on her right hip in November and on her left hip in January, and that her estimated return-to-work date was April 21, 2013. There were no further communications about Ross’s leave until December 31, 2012, at which time the company’s Benefits Manager contacted Ross and learned that she still planned to be out until April. The employer thereupon sent her a letter stating that they could not hold her position open for that long and that her employment was terminated.
Ross had her two surgeries, which were successful enough that she could march right over to her lawyer’s office and file a federal court lawsuit claiming a violation of FMLA. Specifically, she asserted that the company failed to advise her that as a result of her newly-defined return date, her planned leave exceeded her 12 weeks of FMLA eligibility. Had she known this, she would have restructured the leave, presumably by delaying the second surgery until after she requalified for more FMLA time.
The employer replied that when Ross applied for her leave, they accurately informed her that she was eligible for 12 weeks of FMLA leave. While her return-to-work estimate changed, she still had the same 12 weeks of FMLA eligibility so there was no change in her circumstances. They also pointed out that even if they would have updated the Designation Notice to tell her that her FMLA time would expire before April, Ross suffered no actual harm because she obviously would not have been able to return within the her allotted 12 weeks under FMLA.
Employee Walks Off With a Win
After reciting the requirements of the Designation Notice, the judge sided with Ross and quoted the following excerpt from the regulations:
If the information provided by the employer to the employee in the designation notice changes (e.g., the employee exhausts the FMLA leave entitlement), the employer shall provide, within five business days of receipt of the employee’s first notice of need for leave subsequent to any change, written notice of the change.
Since the note from the physician setting a specific return date was a change in circumstances, the judge ruled that the employer should have sent a revised Designation Notice identifying how much of the time would be attributed to FMLA. After all, her original return date was “unknown” and therefore it was not clear that Ross would exceed her FMLA eligibility. Once it became known that Ross would in fact exceed her allotted 12 weeks, the company should have advised her as such. The judge wrote:
The overall intent of the FMLA is lost when an employer fails to provide an employee with the opportunity to make informed decisions about her leave options and limitations. Without such an opportunity, the employee has not received the statutory benefit of taking necessary leave with the reassurance that her employment, under proscribed conditions, will be waiting for her when she is able to return to work.
Even so, the company contended that Ross was not harmed since regardless of what might have been said in a revised Designation Notice, her leave lasted well beyond her 12 weeks of FMLA eligibility. The court disagreed, noting that Ross could have made the decision to delay her second surgery until she requalified for FMLA, thereby preserving her employment. The failure to notify her divested her of this opportunity.
Bottom Line
This decision is not binding on Minnesota employers (at least not until a Minnesota court decides to rely on it) and it could be subject to appeal. Still, it is a wake-up call for everyone to remain vigilant in the administration of their FMLA programs. Issuing the required notices is important and helps prevent employees from claiming prejudice from lack of notice, even though it often seems that employees know the in’s and out’s of their leave rights down to the tiniest detail. Even if you neglected to send the notices when they were required, send them anyway – better late than never.
Specifically, where the employee provides updated medical information or a revised duration of their absence, this case tells us that we should send out a new Designation Notice with updated calculations even if it seems obvious that the employee already knows that their leave exceeds their FMLA eligibility. This takes a little extra effort but not nearly as much as litigation down the road if the employee wants to file a claim.