What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the thirteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly issuing an employee the FMLA Designation Notice.

Employers must designate leave as FMLA-qualifying, in writing, within five business days of when employers have enough information to determine whether the leave is being taken for an FMLA-qualifying reason. 29 C.F.R. § 825.300(d)(1). When an improper designation notice is issued, courts often determine whether an employee’s FMLA rights were interfered with by turning the analysis to whether the employee was prejudiced.

In Rengan v. FX Direct Dealer, LLC, 2017 U.S. Dist. LEXIS 123456 (S.D.N.Y. August 04, 2017), the court found that the employee was not prejudiced by her lack of proper designation notice. In this case, the employee learned she was pregnant and requested FMLA leave. The employer verbally informed the employee that her leave would begin on the date of her child’s birth, and that she was expected to return to work twelve weeks from that date. However, the designation notice was improper because it was not written. The employee, insisting on more time off to secure childcare services, refused to return to work at the end of her leave, and was terminated. Despite the improper designation notice, the court determined that the employee was not prejudiced, because she could not show that with proper notice she would have returned to work when she exhausted her twelve weeks of leave.

In Ross v. Youth Consultation Serv., 2016 U.S. Dist. LEXIS 179693 (D.N.J. December 29, 2016), the court determined that the employee was prejudiced by her lack of designation notice. Here, the employer granted the employee’s FMLA leave request to receive multiple surgeries for her chronic hip condition, and issued a designation notice understanding that her return to work date was unknown. Two weeks later, however, the employee provided a physician’s note indicating that she needed six months of leave. The employer ultimately terminated the employee when she did not return to work after she exhausted her twelve weeks of FMLA leave. The court found that the employer should have issued a revised designation notice to inform the employee that her leave would exceed the twelve weeks of FMLA.  In the court’s view, this lack of a revised designation notice prejudiced the employee because she could have made the decision to delay her second surgery until she requalified for FMLA, thus preserving her employment.

Employers should analyze each FMLA leave situation to make sure a proper FMLA Designation Notice is issued. The U.S. Department of Labor Wage and Hour Division has Designation Notice forms available for employer to use at www.dol.gov/whd/forms/WH-382.pdf.