In Downey v. Strain, the Fifth Circuit U.S. Court of Appeals has reaffirmed Department of Labor regulations requiring employers to give employees individualized notice of Family and Medical Leave Act (FMLA) leave.
Susan Downey took leave related to knee and shoulder surgeries from November 2002 through March 2003 and was charged with 424 hours of FMLA leave. Under FMLA, eligible employees are entitled to 12 weeks of leave in a 12-month period, plus reinstatement in their job upon their timely return to work. Based on her 40-hour work week, Downey was entitled to 480 hours of leave. In June 2003, she suffered a work-related knee injury and had surgery, requiring another two months of leave from the end of July through the beginning of October 2003. The employee’s supervisor charged this leave to FMLA, but did not inform Downey of this. Her FMLA leave was exhausted on August 7, with the rest of the time consisting of other paid leave. When she returned to work in October, she was not reinstated in her previous job, but was reassigned to another division where she received fewer fringe benefits.
Downey sued, arguing that her supervisor had interfered with her FMLA rights by failing to provide her with individualized written notice that her second leave would be designated as FMLA leave. She claimed that, had she known that the second leave would be counted as FMLA, she would have postponed her surgery to a time when it would not have caused her to exceed her FMLA entitlement. The jury agreed, and the defendant appealed, arguing that the regulations requiring individualized notice were invalid.
Section 825.208(a) of the FMLA regulations provides, “In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.”
Section 825.208(b)(1) provides, “Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave.”
The Fifth Circuit reaffirmed these regulations, and upheld the District Court ruling that the employee must demonstrate that she suffered harm from the FMLA violation (e.g. no notice) before being entitled to a remedy. Because the plaintiff was able to show this, the appeals court affirmed the jury verdict in her favor.
This case emphasizes the importance of informing employees specifically, and in a timely fashion, that their time off (whether paid or unpaid) is designated as FMLA leave, even if provisionally before they receive a proper health care certification form. Failure to notify opens an employer to liability for damages under the FMLA.
Case summary and additional compliance articles provided by Worklaw Network Member Shawe Rosenthal, LLP.