Your FMLA notices may be defective if…

Lapiz labial.jpg
…they’re written in broken Ukrainian and sealed with a pink kiss. But, that’s another post for another day. Like tomorrow.

Today, I want to focus on the Family and Medical Leave Act Notice of Eligibility and Rights & Responsibilities, a copy of which you can get from the U.S. Department of Labor here.

Your Notice needs to address job restoration.

If you go to the second page of the Notice, about halfway down the page, there’s a bullet, which reads:

  • You must be reinstated to the same or an equivalent job with the same pay, benefits, and terms and conditions of employment on your return from FMLA-protected leave. (If your leave extends beyond the end of your FMLA entitlement, you do not have return rights under FMLA.)

*** Hold on a sec, guys. I’m watching Death Wish IV. It’s the one where Charles Bronson kicks butt. He’s about to kick butt. BRB ***

Yeah, ok, I’m back. So, why is it important to remind an employee of the right to reinstatement when providing FMLA? Because the FMLA requires that employers provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. That includes the right to “restoration to the same or an equivalent job upon return from FMLA leave.” It’s right there in the regulations.

And we management-side lawyers have a habit of advising companies to follow the rules.

If your Notice doesn’t mention job restoration, you may still be ok. But, probably not.

Now, if your FMLA notice is missing this little tidbit, are you screwed worse that a bad guy in Death Wish IV? Maybe not. That is, if a notice violation occurs, the employee still must demonstrate that he/she was prejudiced by the mistake. For example, in Vannoy v. The Federal Reserve Bank of Richmond (opinion here), the employer’s FMLA Notice to Mr. Vannoy did not mention his right to job restoration. Oops. And, in this particular instance, Mr. Vannoy was able to defeat the employer’s motion for summary judgment on his FMLA interference claim, because he presented evidence of prejudice:

The record in this case contains sufficient evidence to avoid summary judgment to FRBR that Vannoy — who returned to work prior to the expiration of the medical leave he initially requested — would have structured his leave differently had he known that his job was protected. Vannoy initially requested medical leave from November 10 to December 10, 2010, in accordance with the physician’s note he provided FRBR. That leave was approved. However, Vannoy did not take the month-long leave term that he requested. Instead, he returned to work early and FRBR told him he would be permitted to work only after he provided a physician’s note verifying he could resume work. Vannoy contends that had he known of his right to reinstatement at the conclusion of leave, he would have taken the full 30-day leave of absence set out in his initial FMLA application to obtain the inpatient treatment he claims to have needed….

Do you have all the right FMLA notices and whatnot?

The easiest way to avoid making the same mistake is to use the right documentation. And, sure enough, the Department of Labor has all of the requisite FMLA notices and documentation. Woo hoo!

  • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)
  • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)
  • WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)
  • WH-382 Designation Notice (PDF)
  • WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)
  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave (PDF)
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (PDF)
Image Credit: By Jorge BarriosOwn work, Public Domain, https://commons.wikimedia.org/w/index.php?curid=2666865
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