"No Harm, No Foul" and the FMLA Still Means "Be Diligent"

We routinely remind employers about the importance of dotting every “I” and crossing every “T” with their Family and Medical Leave Act (FMLA) paperwork because, if they do not, employees can attempt to make a mess over technically deficient eligibility and designation notice arrivals and try to assert liability claims in litigation over such technical errors. This advice remains important, and we will continue to emphasize the importance of following FMLA paperwork best practices. However, a federal appellate court recently concluded that technical violations of the FMLA regulations do not give rise to liability unless an employee can show that an employer’s non-compliance with paperwork technicalities affected his or her decisions regarding leave.

The Department of Labor’s FMLA regulations require employers to provide eligibility and designation notifications in short order after an employee requests FMLA-related leave or puts employers on notice of potential need for leave. Employers sometimes fail to provide these notices within the required time period, or occasionally fail to provide them altogether. Most often, this is not a malicious action, but instead a simple administrative oversight that nonetheless can have costly consequences.

However, in a recent decision from the First Circuit Court of Appeals (covering Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island), the appellate court determined that an employer’s failure to provide timely FMLA notices is not in and of itself a violation of the FMLA and its implementing regulations. Rather, failure to provide timely notices only violates the FMLA when an employee can demonstrate that but for the tardy notice, he or she would have scheduled his FMLA leave differently. In other words, according to the recent decision, the absence of a formal notice or designation does not violate the FMLA as long as an eligible employee is provided with the required twelve weeks of leave.

The employee in the case provided medical certification indicating that he was unable to work for an extended period of time. Though the employer determined the employee was eligible for leave, it failed to send an FMLA eligibility notice until well beyond the deadline (in fact, it did not send the notice until after the leave itself expired). When the employee was reinstated to a job he did not like, he quit and sued for FMLA interference on the basis of the untimely eligibility notice. However, the appellate court reasoned that, even if the employee had received a timely notice, it would have in no way affected his need to use FMLA during the period he used it nor his decision to use FMLA.

While this recent case is a positive development for employers, it should not in any way detract from the importance of diligent practices with respect to FMLA paperwork. Under a different set of facts – such as where the leave was not requested for an employee’s own serious health condition and an employee’s decision to take leave could more closely approximate an actual choice rather than unavoidable medical need (such as in the case of intermittent leave or leave to care for a family member), one can easily imagine a different outcome. In addition to avoiding such potential outcomes, diligent FMLA paperwork practices can also help avoid employee abuse of FMLA leave by eliminating employee contentions that they did not know their time off would count against their FMLA allotment. While it is thus reassuring to see a court agree that purely technical FMLA violations should not result in financial windfalls for opportunist employees, it remains important that employers stay vigilant with respect to FMLA paperwork practices.