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Lack of FMLA Notice Didn’t Interfere With Granting Full Leave

October 11, 1999
Related Topics: Employee Leave, Featured Article
Issue: Your employee, diagnosed with a serioushealth condition, requested leave. In response you informed him that hisabsence would be treated as unpaid leave under the Family and Medical Leave Act(FMLA). On the day that the employee’s 12-week FMLA leave was to end, your HRdirector called him to ask about his return to work. After hearing that theemployee was still disabled, HR then informed him that his 12-week FMLA leavehad expired, and that since his position needed to be filled and there was norequirement to grant him further leave, his employment was terminated. It isundisputed that the employee was unable to perform the essential functions ofhis position. Nevertheless, he claims that by terminating his position withoutgiving him specific notice that he was not entitled to more than 12 weeks ofleave under the FMLA, you violated the Act. Did you?

Answer: No. The dispute as to whether or notyou should have given the employee notice of the amount of leave to which hewas entitled under the FMLA is not material since the employee received thefull benefits conveyed by the FMLA; i.e.,remaining on unpaid leave and receiving insurance coverage for 12 weeks. Thus,even if you failed to provide proper information to the employee as to what hisrights were under the FMLA, you did not interfere with those rights.

Look back at theFMLA’s purpose.
The FMLA was enacted because of Congress’ view that there is inadequate jobsecurity for employees who have serious health conditions that prevent them forworking for temporary periods. In an effort to enable an employee to takereasonable leave for medical reasons, Congress enacted substantive provisionsentitling eligible employees to temporary leave, to certain continuingbenefits, and to reinstatement, and made it “unlawful for an employer tointerfere with, restrain, or deny the exercise of or the attempt to exercise,any right exercised under the FMLA.

Should a lack ofnotice entitle the employee to relief?
The FMLA grants eligible employees affected by such unlawful conduct aprivate right of action for damages or equitable relief. But an employee doesnot have a right to sue an employer for failing to give him or her notice ofthe terms of the FMLA where the lack of notice had no affect on the employee’sexercise of or attempt to exercise any substantive right under the Act.

Cite: Sarno v DouglasElliman-Gibbons & Ives, Inc, 2ndCir 1999, 138 LC ¶ 33,927.

Source:CCH Incorporated is a leading provider of information and software for humanresources, legal, accounting, health care and small business professionals. CCHoffers human resource management, payroll, employment, benefits, and workersafety products and publications in print, CD, online and via the Internet. Formore information and other updates on the latest HR news, check our Web site at

The information contained in this article is intendedto provide useful information on the topic covered, but should not be construedas legal advice or a legal opinion.

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