Under the FMLA, once an employer knows that an employee is taking leave for an FMLA required reason, the employer must give the employee individualized notice that the leave will be counted against the employee’s FMLA entitlement. Recently, however, the Fifth Circuit made clear that an employer’s failure to provide the required individualized notice, alone, will not serve as the basis for an FMLA claim.

In 2002, the Supreme Court decided Ragsdale v. Wolverine World Wide, Inc., which involved an employee who took leave for medical treatments without notice from the employer that such leave would count against her FMLA entitlement. When the employee’s condition persisted, thus requiring her to take additional leave, she was terminated. The employee sued the employer, alleging she was entitled to leave under the FMLA pursuant to the FMLA penalty regulation, which stipulated that leave not specifically designated by the employer as FMLA leave would not count against the employee’s FMLA entitlement. The Supreme Court, however, struck down the penalty regulation because it would relieve employees from their burden of proving they suffered actual harm as a result of the employer’s failure to designate leave under the FMLA.

In the recent case of Downey v. Strain, the Fifth Circuit Court of Appeals found Ragsdale to be instructive. Ultimately, Downey illustrates that the Ragsdale holding has teeth—an FMLA claim exists where an employer fails to give individualized notice and the employee can prove harm.

Downey involved a female employee who took FMLA leave after proper notice from the employer to the employee. In that leave, the employee used 424 hours of her FMLA allowance, leaving 50+ hours of leave time for the remainder of the year. Within months of her return, the employee again requested FMLA leave for a surgery. The employer charged the employee with FMLA leave for this period without providing notice to the employee of that fact. During the second leave, the employee exhausted her FMLA entitlement. Upon returning to work, the employee was reassigned to a different position that did not have equivalent pay and benefits. The employee brought a lawsuit alleging that the employer interfered with her rights under the FMLA when he failed to provide her with individualized notice that her leave would be counted against her FMLA hours.

On appeal, the employer asserted (1) that the notice requirements regarding the FMLA were invalid and that it gave proper notice to the employee when she took leave for her first set of injuries, and (2) the jury erred by finding the employee was prejudiced by the lack of notice.

The Fifth Circuit disagreed and found the notice requirements regarding the FMLA were valid as enforced. Additionally, the court stated the employee proved prejudice, and therefore an inability to exercise her rights under the FMLA, by showing that had she received individualized notice, she would have postponed her surgery to another FMLA period. As demonstrated by this case, it is important that employers ensure their notice procedures properly inform employees when leave will be counted against the hours allotted by the FMLA. Employers should not rely on the notion that the Supreme Court invalidated this requirement in Ragsdale. If an employee can show harm from the failure to receive individualized notice, then the employee has a valid FMLA claim. Because the existence of harm can only be determined with hindsight, individualized notice should always be given to the employee.