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Fifth Circuit Decision Shows FMLA Notice Rules Still Have Teeth

    Client Alerts
  • December 21, 2007

Since the U.S. Supreme Court’s 2002 Ragsdale decision, many employers have largely ignored employer notice requirements under the Family and Medical Leave Act.  In Ragsdale, the Court partially invalidated Department of Labor rules requiring employers to notify employees that they are using their FMLA leave entitlement.  As long as the employee receives job protected leave, and is not prejudiced by the lack of notice, the leave granted counts toward the 12-week FMLA entitlement even if the employee is never told that he or she is using FMLA leave.


The Supreme Court left open one situation where the notice rules may still apply.  If the employee can demonstrate that she would not have used FMLA leave if she had known that she was using up her entitlement, the absence of employer notice can form the basis of an FMLA claim.  In most cases where the employee has a serious health condition, this lack of notice is irrelevant, because the employee is unable to work regardless of whether or not he knew he would be using FMLA leave,.  However, a decision last week from the Fifth Circuit Court of Appeals warns employers not to ignore the DOL notice rules.


In Downey v. Strain, the plaintiff had a chronic and serious health condition relating to her knee.  She needed surgery, but claimed that she would have scheduled the procedure to avoid exceeding her FMLA entitlement if she had received notice that her requested for time off would be counted against this balance.  She sued after being reassigned after exceeding her maximum FMLA leave.


The Fifth Circuit affirmed a jury verdict for the plaintiff concluding that she had been prejudiced by the lack of notice that her requested time off for surgery would involve use of her remaining FMLA leave.  The court refused to take a step beyond Ragsdale and completely invalidate DOL’s individual notice rules.  If the plaintiff can demonstrate prejudice on a case by case basis, she can recover for her employer’s violation of the notice requirements.


Employers should provide notice to employees within two business days of learning that the time off requested by the employee qualifies as FMLA leave.  This notice should clearly inform the employee that he will be using his FMLA entitlement while out of work.  While in many cases, lack of notice will not obligate the employer to restart the FMLA clock, this case demonstrates the dangers of sloppy notice procedures.