FMLA Leave: Designate Early and Often

In Hannah P. v. Coats, the Office of the Director of National Intelligence allowed an analyst to take four weeks of paid sick and personal leave for her depression without notifying her that she was entitled to up to 12 weeks of FMLA leave.

The employee returned to work after four weeks and was found not qualified for a permanent position. The court found if the employee could convince a jury she would have structured her leave differently had she received an FMLA notice, then she could prevail at trial on her FMLA claim. The onus is on employers to notify employees when a leave of absence qualifies under FMLA.

If an employer fails to notify the employee of FMLA designation, the employee can obtain relief under FMLA if they were prejudiced by the failure to designate. The Wage and Hour Division of the Department of Labor recently issued an opinion letter stating its view that employers may not delay designating paid leave as FMLA leave merely because they provide family and medical leave that is more generous than the FMLA. Hannah P. v. Coats, 916 F.3d 327 (4th Cir. 2019); FMLA2019-1-A.

IMPACT: To minimize liability, employers should notify their employees of their FMLA rights whenever an employee takes paid leave for an FMLA-qualifying purpose.

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