What If You Forget to Tell an Employee About FMLA Leave?

By Eric B. Meyer

If you have 50 or more employees, you must abide by the Family and Medical Leave Act.

The FMLA affords up to 12 work weeks of leave in a 12-month period, among other things, to care for a parent with a serious health condition. But let’s say that you have dropped the ball and failed to provide your employees with:

  • Information or notice explaining the provisions of the FMLA,
  • Information regarding how to file complaints for violations of the FMLA, and
  • FMLA information in “any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook.”

Let’s even assume that one of your employees takes leave that would otherwise qualify under the FMLA, but you fail to tell that employee that the FMLA covers the leave. Have you interfered with your employee’s FMLA rights?

Persnickety Poindexters pose problems?

The case is Poindexter v. City of Sallisaw. A few years ago, the Poindexter brothers, who worked for the City of Sallisaw in Oklahoma, requested to have a day off to be with their mother who was having hip surgery. The City said fo shizzle (read: yes) and the boys took the day off with pay, pursuant to the City’s “paid family sick leave policy.” The City, however, did not designate the leave as “FMLA leave.”

So, the boys claimed FMLA interference.

Uh, fellas. FMLA interference requires — you guessed it — interference.

The FMLA makes it illegal for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any rights under the FMLA. To establish an FMLA claim, a plaintiff must show three elements:

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  1. The plaintiff is entitled to FMLA leave;
  2. The defendant interfered with the right to take FMLA leave; and
  3. The defendant’s action was related to the exercise or attempted exercise of FMLA rights.

Here, the Poindexters were never denied any leave, whether FMLA or sick leave. And the City never interfered with the Poindexters’ rights — should they have needed to exercise them — to take up to 12 work weeks of FMLA leave in a 12-month period.

So, it did not matter, in this particular instance, that the City failed to designate the day off as “FMLA leave.” The Court reasoned that the Poindexters would have still been entitled to their full 12 work weeks of FMLA leave in the remainder of the year as provided by the FMLA.

No harm, no foul. Case dismissed.

A few FMLA tips for employers

  • Make sure that you post all the required FMLA posters and have a written, legally-compliant FMLA policy. Those who don’t are begging for trouble. Willful failure to post required notices may result in a fine.
  • Have an employee who requests anything that sniffs of FMLA leave complete a certification form. You can find them here (about halfway down the page). Then, designate the leave as such and inform the employee, in writing, of the designation.
  • Don’t forget about state family leave laws. In certain instances, employees may be able to stack FMLA leave and state leave to use more than 12 work weeks of FMLA leave in a 12-month period. You can find more details on state family leave act laws here.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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