Employer Dodges Bullet After Botching Required FMLA Notices

by David W. McBride

Employers have many obligations to employees who need leaves of absence under the Family Medical Leave Act (“FMLA”).  One of those is the obligation to provide the employee with written notice of the employee’s eligibility for such leave, together with information about the employee’s rights and responsibilities under the Act.   This notice must be provided to the employee within five business days of the employer learning that the employee’s medical leave may be for an FMLA-qualifying reason.   Then, after the employer has received adequate information from which the employer can determine whether the employee’s absence qualifies for FMLA protection, the employer has only five business days to provide the employee with a notice about its decision as to whether or not the medical leave will considered FMLA leave.  An employer’s failure to provide the right notices in a timely manner may be a violation of the FMLA.

In Bellone v. Southwick-Tolland Regional School District, the First Circuit Court of Appeals found that, even though the School District failed to provide timely and adequate Eligibility/Rights and Responsibilities and Designation Notices to an employee, Bellone could not bring actions based on those FMLA violations because he did not actually suffer harm as a result.  Bellone was a fourth-grade teacher at the Woodland Elementary School in the Southwick-Tolland Regional School District.  He started a medical leave on March 4, 2010, when he informed the School District that he needed to take two weeks off:  he provided a note from his doctor showing he was unable to work from March 3-23, 2010.  The School District sent him an FMLA Eligibility Notice on March 24, 2010, 20 days after Bellone started his leave.  The School District, Bellone, and Bellone’s doctor then traded correspondence regarding Bellone’s ability to return to work, including an April 10, 2010, letter from his doctor stating he was unable to work for an “uncertain” amount of time.  The School District eventually sent Bellone the required Designation Notice, but it did not do that until on July 9, 2010, three months after his leave began.  Although the notice was late, the School District did approve his absence as FMLA leave, and it informed Bellone that he would be entitled to twelve weeks of FMLA leave, from March 4-June 4, 2010.

As the start of the new school year approached, the School District needed to know whether Bellone would be able to return to work, so on August 25, 2010, it sent him another letter.  The letter said that, in order to continue to hold his job, Bellone had to respond with evidence of his fitness for duty within seven days.  Bellone’s psychologist responded on August 30, stating there were no psychological reasons he could not return to work for the academic year.  The School District then placed Bellone on administrative leave for the first three weeks of the school year and scheduled him to return to work on September 22, 2010, in a slightly different position but with the same benefits and salary.

Bellone did not return to work.  The School District first suspended Bellone and then officially terminated him in October 2010.  Bellone then filed suit against the School District alleging interference with his FMLA rights and retaliation against him based on his use of FMLA leave.

The School District moved for summary judgment of the lawsuit, and the district court granted the motion, finding, among other things, that the School District’s failure to give Bellone proper notice did not harm him in any way and that therefore Bellone’s lawsuit against the School District could not go forward to trial.  Bellone appealed that decision to the First Circuit Court of Appeals.  The First Circuit affirmed the trial court’s decision, emphasizing that even though the School District had clearly violated the FMLA by providing late Eligibility and Designation Notices, actual harm was a critical element of Bellone’s case, and that critical element was missing:  Bellone had failed to provide any evidence that he would have done anything differently even if the School District had provided the notices on time or in the proper manner.  On the contrary, the School District put forth evidence from Bellone’s own doctor that he would not have been able to return to return to work even if the School District had informed him within five days of its decision that his leave would be considered FMLA leave.

The decision emphasizes the importance of providing timely, complete notices under the FMLA.  The School District won summary judgment only because of the specific facts of the case:  Bellone could not have done anything different under the circumstances even if he had the appropriate notices within the required timeframe.  With slightly different facts, the School District would be in a much less advantageous position because its delays clearly violated FMLA notice requirements.  For example, if Bellone could have returned sooner with a modified workload, or if there were any evidence that he could have come back to work sooner with more aggressive treatment, or if the School District had given Bellone a less favorable position when he was reinstated, the case could have turned out differently.   Employers must process employee requests for medical leave promptly, providing the proper notices within the required five day time frame and making sure to dot every “i” and cross every “t.”   Remember that notice to a supervisor is notice to the employer, so train your supervisors to understand when information that they may have received from an employee could trigger your FMLA obligations.  You’ll save yourself headaches from unnecessary litigation and ensure that you are treating your employees fairly under the law every time.   If you’d like information on fulfilling your FMLA obligations or on training your supervisors on their FMLA and ADA obligations, contact Susan Fentin at Skoler, Abbott & Presser: sfentin@skoler-abbott.com

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