Employment Law Daily FMLA notice’s failure to include job restoration rights might be interference if employee prejudiced
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Wednesday, August 10, 2016

FMLA notice’s failure to include job restoration rights might be interference if employee prejudiced

In a case emphasizing the importance of providing proper notice to employees of their FMLA rights, the Fourth Circuit found that the notice a federal reserve bank purportedly sent to an employee failed to inform him of his right to job restoration. And because he presented evidence that he would have structured his leave differently had he known his job was protected, the federal appeals court revived his FMLA interference claim. When the employee’s supervisor noticed he was having problems with his work and attendance, he told the bank’s medical director the employee might be depressed. The medical director had previously treated him for depression and knew the employee had taken antidepressant medications "for a long time." Diagnosis. Not long after, a counselor diagnosed him with "major depressions" and several weeks later, he was admitted to a hospital for psychiatric treatment. His physicians recommended that he enter a 30-day rehabilitation program for treatment of depression and alcohol dependency. Purportedly concerned that taking time off would result in his termination, he refused. Around that time, he submitted an application for short-term disability, which also functioned as a request for FMLA leave. Attached to the application was his physician’s statement taking him out of work for a month. Fearful of losing his job, the employee reported to work but was sent home because he didn’t have a doctor’s note. He returned the next day with a doctor’s note and was sent on a three-day work assignment in another city. While he drove a company vehicle and stayed in a hotel at the company’s expense, he did not report to work. Upon his return to the office, he was placed on a performance improvement plan and was ultimately terminated for failure to properly communicate unscheduled time off and insubordinate behavior for leaving work despite instructions to complete the PIP. He then sued, alleging that the bank violated his rights under the FMLA and the ADA and the district court dismissed his claims on summary judgment. FMLA interference. On appeal, the employee argued that the bank failed to provide him individualized notice of his job protection rights as required by the FMLA, which affected his ability to take the medical leave he needed. Under the FMLA regulations, a statement of the employee’s right to job reinstatement must be included in the rights and responsibilities notice an employer sends an employee who may be entitled to FMLA leave, said the court, observing that the bank did not contest that the only relevant document in the record failed to show notice of the employee’s job restoration rights. Therefore, the employee established for purposes of the bank’s summary judgment motion that its notice did not comply with the regulatory requirement. Prejudice. And while the FMLA does not provide relief unless the employee has been prejudiced by the violation, the court found sufficient evidence to show that the employee, who returned to work prior to the expiration of the medical leave he initially requested, would have structured his leave differently had he known his job was protected. He initially requested medical leave from November 10 to December 10 in accordance with his physician’s note but instead of taking the leave, he returned to work early. He claimed that had he known of his right to reinstatement, he would have taken the full 30-day leave of absence set out in his initial FMLA application to obtain the inpatient treatment. Further, his testimony that "I think [a notice of job protection rights] would have made a huge difference because I wouldn’t have been so fearful of losing my job and I would have known I could have gotten help and that I had the support of the bank and that they wanted me to get well. And I could have gone to treatment" was supported by the testimony of his family. Indeed, said the court, after his termination, he completed an inpatient treatment program. Employer takeaway. This case should serve as a reminder to employers that failure to comply with the FMLA’s notice requirements could constitute interference with, restraint of, or denial of the use of FMLA leave. If an employee is able to demonstrate harm as a result of an employer’s failure to provide a required notice, the employer may be liable for the harm suffered. Employers should review all forms and policies to ensure that they are in compliance with this requirement.

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