What employers can learn from one company’s $747,320.66 FMLA mistake


The Department of Labor does most of the heavy lifting for you.

But, today’s blog post is a sobering reminder that when an employer provides DOL-prepared Family and Medical Leave Act paperwork to an employee, it’s just as important for the employer to complete its portion of the forms as it is for the employee to complete his or hers.

Resignation? Or a failure to reinstate?

Let’s travel down to Virginia. In the case of Perry v. Isle of Wight County (opinion here), the plaintiff took leave under the FMLA and claimed that the defendant failed to reinstate her to her position after her FMLA leave ended. (If so, this would violate the FMLA.)

The plaintiff took FMLA leave in July 2014. On the defendant’s “Request for Family/Medical Leave” form, the plaintiff wrote “7/31/14 *” in the space labeled “Date Leave Ends.” Under that space, Plaintiff wrote, “* with doctor’s approval.” On Thursday, July 31, 2014, the plaintiff’s doctor ordered her not to return to work until Monday, August 4, 2014.

Except, the defendant had a policy manual, which states, “If the employee does not return to work following the conclusion of FMLA leave, the employee will be considered to have voluntarily resigned.” Thus, the defendant considered July 31, 2014 to be the plaintiff’s last day of FMLA leave. Therefore, when the plaintiff did not show up to work on August 1, 2014, the defendant considered the plaintiff to have voluntarily resigned her employment.

What does the FMLA say about extending a leave?

The plaintiff argued that the FMLA regulations permitted her to inform the defendant of her need for more leave on Monday, August 4, 2014. Indeed, the FMLA regulations (section 825.311(c)) state, “It may be necessary for an employee to take more leave than originally anticipated. . . . [In this situation], the employer may require that the employee provide the employer reasonable notice (i.e., within two business days) of the changed circumstances where foreseeable. The employer may also obtain information on such changed circumstances through requested status reports.” 

Reasonable notice.

It’s the employer’s responsibility to inform an employee, like the plaintiff, that she must provide “reasonable notice” of the changed circumstances that necessitate more leave than originally anticipated. Here, the court concluded that the defendant had not met its burden because the FMLA paperwork it provided the plaintiff was deficient.

For example, on the Notice of Eligibility and Rights & Responsibilities, defendant’s Human Resources personnel did not complete this section. Therefore, the plaintiff had no idea when she had to furnish the defendant with periodic reports of her status and intent to return to work. Plus, on the Designation Notice defendant provided to the plaintiff, it reads, “The FMLA requires that you notify us as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.” Finally, the defendant’s policy manual reads, “If the employee’s anticipated return to work date changes and it becomes necessary for the employee to take more or less leave than originally anticipated, the employee must provide the County with reasonable advance notice (i.e., within 4 business days) of the employee’s changed circumstances and new return to work date.”

Taken together, the Court construed them as requiring the plaintiff to notify defendant within 4 business days of any changed circumstances that extended her FMLA leave. And because the plaintiff learned from her doctor on July 31 of the need to extend her leave, she had four business days to notify her employer. However, in the interim, the defendant purportedly accepted her resignation. In reality, according to the Virginia federal court, it violated the FMLA.

Judgment of the plaintiff for $747,320.66, plus attorney’s fees.

Employer takeaways.

The FMLA permits an employer to delay and eventually deny FMLA leave in situations in which the employee fails to return complete FMLA paperwork. But, when the employer skips steps on either the Notice of Eligibility and Rights & Responsibilities or Designation Notice, it could spell trouble too.

Just ask Isle of Wight County.


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