Volume 14, Number 4 · October 2004

An Updated View of the Family and Medical Leave Act

by Andrew S. Chumney, Esquire

When the Family and Medical Leave Act (FMLA) was enacted 11 years ago, our assessment was that it seemed simple on its face, but complicated to implement. We were right. The FMLA has been tweaked several times in the past 11 years, most recently involving an employer's liability for failure to provide the proper notice to its employees of their rights under the FMLA. It is this most recent change of which our clients should be aware.

A review of the FMLA shows that it allows certain employees to take up to 12 weeks a year of unpaid, job-protected leave to care for a new child, an ailing relative or the employee's own illness. Although the leave is unpaid, health benefits (and the payment or co-payment of premiums) must continue without change during the leave, as if the employee were still in "active service" for the employer.

Furthermore, once the eligible employee returns from the leave, he or she is entitled to be reinstated to his or her former position, or an equivalent one. The caveat to these rights is that the returning employee is not entitled to a right, benefit, or position to which the employee would not have been entitled had the employee not taken the leave. For example, if an employee is discharged during or at the end of a protected leave for a reason unrelated to the leave, such as a reorganization layoff, there is no right to reinstatement.

When the legislation was first enacted, our advice to employers was to make sure your employees were aware of their rights by adopting carefully written but simply stated policies concerning employee leaves of absence, providing copies to their employees and establishing a mechanism to allow for questioning or discussion of the policies with the employees. Again, we were right. U.S. Department of Labor (DOL) regulations later buttressed these individual notice requirements.

Included in these obligations is the employer's responsibility to designate whether or not the reason for the leave qualifies for FMLA protection, whether it will be paid or unpaid, and to give notice of the employer's designation to the employee. Also, if an employer provides employees with a handbook concerning employee benefits, the handbook must incorporate information on the employee's FMLA rights and responsibilities and the employer's policies regarding the FMLA. If the employer does not provide such a handbook, such information must be provided when an employee requests leave.

Moreover, each time the employee requests leave, the employer must, within a reasonable time thereafter, provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. This notice must include, among other things, whether the leave will be counted against the employee's annual FMLA leave entitlement and specifically address the employee's right to restoration to the same or equivalent job upon return from leave.

A former regulation imposed a penalty on an employer who failed to advise an employee of his or her rights, by not commencing the 12 week FMLA leave until the notice of the rights were given. However, the United States Supreme Court struck down this provision. This issue has predictably surfaced again.

An employee was employed under a "last chance agreement" which required, as one of the conditions for him to remain employed, that he report to work every day on time. The employee was subsequently injured in a non-work related accident and requested to take his entitled leave under the FMLA. The employer failed to notify him of all his rights under the FMLA, including the 12 week time frame for the entitled leave. As a result he took more than the permitted 12 weeks for recovery. When he attempted to return to work he was terminated from his position for missing work in excess of the allowed leave.

In court, the employee argued that the employer's failure to advise him of his right to 12 weeks of FMLA leave, after notice of his serious health condition, constituted an interference with his FMLA right to that protected leave. He further asserted that had he received the required notice, he would have been able to make an informed decision about structuring his leave and his plan of recovery in such a way as to preserve the job protection afforded by the Act.

The court agreed with the employee and held that to sustain a cause of action, an employee must show that he would have either taken less leave or structured the leave differently if he had received the required notice. Having established this, the employer was liable to the employee, including reinstatement of position and damages.

Of course the easiest way to avoid being sued by your employees for failure to give notice and the subsequent cost of litigation is to follow our initial advice and always clearly give the required notices to all your employees and inform them of their rights under the FMLA.

As an employer, you should take time to review your policies and ensure that you are in compliance with the DOL's regulations concerning the required notices which must be given to your employees. Whether an employer or employee, if you have any questions about your rights or duties under FMLA, feel free to contact your Peacock Keller attorney.

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