what is the employer’s obligation to make the FMLA known to the employee and offer such FMLA leave to the employee.

This brief exerpt answers the issue which deals with the employer’s obligation to make the FMLA known to the employee and offer such FMLA leave to the employee.

Initially, it should be noted that 29 U.S.C. §2615(a) is relevant here. It states that it is unlawful for an employer to interfere with the rights of an employee to the FMLA. The other relevant section is 29 U.S.C. §2619 dealing with notice itself. It provides that “each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice, to be prepared or approved by the Secretary, setting forth excerpts from or summaries of, the pertinent provisions of this subchapter and information pertaining to the filing of a charge.”
I was able to locate several cases dealing with an employer’s notice requirements to the employee of his rights under the FMLA. The only Florida state court case I found was State, DLES v. Jones, 660 So.2d 282 (Fla. 1st DCA 1995), in which the court set forth the simple statement that “the employer is required to notify employees of their rights and responsibilities under the FMLA.” Id. at 284.
In Dodgens v. Kent Manufacturing Co., 955 F. Supp. 560 (D. S.C. 1997), the employee claimed interference with his FMLA rights by claiming the employer failed to provide him with literature describing the benefits and leave rights guaranteed by the FMLA. The employer admitted it failed to provide an explanation of the FMLA in its handbook and also failed to inform the employee of his FMLA leave rights when a request for leave was made.
The court found that the employer had “clearly violated the FMLA by failing to explain the FMLA benefits and leave rights to Dodgens in its employee handbook or at the time Dodgens requested leave. As 29 C.F.R. §825.220(b) states, a violation of FMLA constitutes interference with FMLA rights.” Id. at 564-565.
Lacoparra v. Pergament Home Centers, Inc., 982 F. Supp. 213 (S.D.N.Y. 1997), also discussed the employer’s notice requirements. There, the court held that “an employer’s failure to provide adequate notice of FMLA procedures may constitute interference with an employee’s FMLA rights if it causes the employee to forfeit FMLA protections.” Id. at 220. Additionally, the court stated that even if information about the FMLA is provided in written materials, according to the FMLA rules “when an employee provides notice of the need for FMLA leave, the employer shall provide the employee with notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.” Id.
Another relevant case which is analogous to the current situation is Knussman v. State of Maryland, 16 F.Supp.2d 601 (D. Md. 1998). There, the employee contended he was unable to formally request FMLA leave because he was both uninformed and misinformed about his rights as a result of the employer’s failure to post FMLA notices or to provided customized notice to him in response to his leave request, which actively misled him about his FMLA rights. The employer countered by arguing there was no FMLA violation because the employee did not request FMLA leave, nor was he denied FMLA leave.
The court explained that the FMLA and the accompanying administrative regulations “impose a heavy notice burden on employers…. The regulations put the responsibility on the employer to ensure that employees apply for FMLA leave whenever appropriate even without the employee’s initiative.” Id. at 608. The court further explained that the FMLA and regulations “require employers to issue two forms of notice to employees—a generalized notice posted at the employer’s premises and a customized notice of FMLA rights and procedures issued to an employee who indicates a need to take leave for an FMLA-qualifying purpose.” Id.
In Wilson v. Lemington Home for the Aged, 159 F.Supp.2d 186 (W.D. Pa. 2001), the court noted that an FMLA regulation provides that “an employer who interferes with an employee’s exercise of rights, or retaliates for the exercise of the same, is in violation of the FMLA and the employee may bring a civil action against the employer for said violations.” Id at 191. Furthermore, under the regulations, the employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for a medical reason. Id. at 192.
The court goes on to provide a thorough explanation of an employer’s notice requirements. Specifically, the regulations state that the employee must be given written notice. The employer here argued that the employee handbook outlining an employee’s leave rights was sufficient to comply with its notice requirements. However, the court disagreed finding that the handbook alone was not sufficient to meet the employer’s notice obligations. The court was of the opinion that a separate written notice apart from the employee handbook was required. As a result, the court found that the employer had impermissibly interfered with the employee’s FMLA rights by not providing proper notice.
DeCesare v. Niles City Sch. Dist. BOE, (unpublished decision - case no. 2001-T-0117), (Ohio Ct. App. 2003), also found that the FMLA and accompanying regulations require employers to issue 2 forms of notice to employees: a generalized notice posted at the employer’s premises and a customized notice of FMLA rights and procedures issued to an employee who indicates a need to take leave for an FMLA-qualifying purpose.
In Nusbaum v. CB Richard Ellis, Inc., 171 F.Supp.2d 377 (D. N.J. 2001), the employee claimed that she never received any written material about FMLA leave, nor was there an FMLA notice posted. The court explained that the FMLA requires that employers post a notice in a conspicuous place about FMLA leave rights. The court also found that the present regulations require “not only a general notice to all employees, but also with notice specific to Nusbaum when she requested medical leave.” Id. at 382.
The court further stated that “all that the regulations require is that an employee be notified that his/her leave is FMLA leave before such leave commences. This requirement does not place any sizable burden or cost upon employers and does not destroy the FMLA’s carefully crafted balance. In fact, the regulations require employers to perform an incredibly simple action.” Id. at 385. Furthermore, the court found that the intent of the FMLA’s notice requirements is not just to allow employees 12 weeks of leave but “also to allow employees to make informed decisions about taking that leave.” Id.
Dressler v. Community Service Communications, Inc., Civil No. 02-171-B-K (D. Me. 2003), also found that when an employer interferes with or restrains an employee’s FMLA rights, the FMLA authorizes the employee to seek redress in a private civil action. While noting that the FMLA did not specifically define “interference,” the court found that the regulations found interference to include refusing to authorize FMLA leave as well as discouraging an employee from using such leave. It would also include “manipulation” by a covered employer to avoid responsibilities under the FMLA.
Applying the above principles to this case, it is clear that the employer should have provided your client with both written notice and a customized notice when she declared her need for medical leave. Their failure to do so constitutes impermissible interference with her FMLA rights. Moreover, their attempt to offer her an alternative on-call work schedule is also a form of manipulation or discouraging her from using her FMLA medical leave rights. Because of these actions, it is clear that the employer violated the FMLA and the employee is within her rights to bring civil suit against the employer.

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Attorney: Maurice Arcadier
Status: Answered
Date Filed: November 2, 2012