Department of Labor regulations issued under the Family and Medical Leave Act require employers to provide FMLA eligibility and designation notices. Employers frequently fail to provide these notices, or provide them after the time periods contained in the rules. Earlier this month, the First Circuit Court of Appeals confirmed that such paperwork violations do not give rise to FMLA claims by employees unless they can show that the failure to provide the notices affected the employee’s decisions regarding leave.
 
In Bellone v. Southwick-Tolland Reg. Sch. Dist., the plaintiff was a teacher who provided medical information from a mental health professional stating that he was unable to work for an extended period of time. The school district provided him with job-protected leave, but did not send the FMLA eligibility notice until several weeks after the DOL deadline, and did not send the designation notice until well after leave had expired. The plaintiff later quit when reinstated to a job he disagreed with, and sued under the FMLA.  Among other things, he claimed that the late notices interfered with his rights to take FMLA.
 
The First Circuit disagreed, affirming dismissal of the claim on summary judgment. The court relied on the U.S. Supreme Court’s 2002 Ragsdale decision, concluding that the failure to provide timely FMLA notices is not in and of itself a violation of the statute. Under Ragsdale, the notice issues only violate the FMLA when the plaintiff demonstrates that if he had received timely notices, he would have scheduled his taking of FMLA leave differently. As long as the employee is provided with 12 weeks of job-protected leave, the absence of formal notice or designation does not violate the law.
 
In this case, the employee’s healthcare provider noted that he was unable to work during the entire FMLA leave period. Therefore, even if he had received timely notice, it would not have affected his need to use up his FMLA leave during this period. This situation applies to most FMLA leaves by employees for their own serious health conditions. There may be some cases where the employee could schedule surgery or other treatment in such a way that they are not automatically incapacitated as of the date of the leave request. More frequently, these timing issues arise when the FMLA leave is requested to care for a sick relative.
 
Even though failure to provide timely FMLA notices does not legally doom the employer, there are good legal and business reasons for adopting processes that assure that prompt notices are sent. At the time of the leave request, the employer has no way of knowing whether a particular employee will be incapacitated for the entire period of requested leave. Sending timely notices avoids situations where an employee claims rights to additional FMLA leave because he or she was not notified that time taken would be counted against their 12-week entitlement.