What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the fifth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not providing an employee with a sufficient Notice of Eligibility and Rights & Responsibilities.

When an employee requests FMLA leave, or when an employer acquires knowledge that an employee’s need for leave might be FMLA-qualifying, an employer must notify the employee of the employee’s eligibility to take FMLA leave and rights and responsibilities within 5 business days, absent extenuating circumstances. This “Eligibility and Rights & Responsibilities Notice” must be in writing and must state whether the employee is eligible for FMLA leave (and if not, the reason why). The Notice also must provide details regarding the specific expectations and obligations of the employee and must explain any consequences of a failure to meet the obligations.

A failure to issue a proper Eligibility and Rights & Responsibilities Notice can result in a FMLA interference claim. Generally, an employee must show that “harm” resulted from an employer’s failure to provide proper notice, in the form of an “impairment of rights and resulting prejudice.”

In Bellone v. Southwick-Tolland Reg’l Sch. Dist., 748 F.3d 418 (1st Cir. 2014), the employee requested FMLA leave, which the employer granted. Ultimately, the employee failed to report back to work on the anticipated return to work date, and was terminated. The employee sued, arguing in part that he received an insufficient Eligibility and Rights & Responsibilities Notice at the beginning of the FMLA process. The lower court agreed that the Notice was insufficient, as it did not contain any of the required information and only instructed the employee to fill out a FMLA medical certification form. Fortunately for the employer, the employee was unable to establish that he was actually harmed by the employer’s insufficient Notice, and the court affirmed summary judgment in favor of the employer on the issue.

In Ross v. Youth Consultation Services, Civil No. 2:14-2229 (KSH)(CLW), 2016 U.S. Dist. LEXIS 179693 (D. N.J. Dec. 29, 2016), an employee alleged that her employer failed to provide her with proper Notice. After the employee initially provided her employer with a doctor’s note supporting the need for leave, the employer sent the employee a packet containing information about FMLA leave benefits, a leave request form, a “Leave Designation/Employee Acknowledgment of Obligations” form, and a medical certification form. The employee provided additional notes from her doctor indicating the need for additional time off, which was in excess of 12 weeks. The employer ultimately terminated the employee, because it determined that she had exhausted her 12 weeks of FMLA leave and could no longer hold open the employee’s job. The employee argued, in part, that her employer never gave her proper Notice, and if it had, she would have structured her leave differently. The court determined that while the employer met the “eligibility” notice requirements, the employer did not satisfy the individualized notice required in the “rights and responsibilities” notice. This resulted in the employer’s failure to adequately inform the employee of her FMLA rights. The court stated that “[t]he overall intent of the FMLA is lost when an employer fails to provide an employee with the opportunity to make informed decisions about her leave options and limitations.” The employee suffered prejudice because she did not have the opportunity to structure her leave differently and save her job.

Employers should not overlook the crucial step in the FMLA process of providing employees with a proper Eligibility and Rights & Responsibilities Notice within 5 business days. There are resources available to help employers meet the eligibility notice requirements. Employers may use Form WH–381 (Notice of Eligibility and Rights & Responsibilities), which is available cost-free at www.dol.gov/whd/fmla.