Recent NJ Employment Decision Highlights Common FMLA Pitfalls

A recently decided New Jersey employment decision highlights several common pitfalls posed by an employee’s pregnancy rights under applicable laws.

It specifically addresses an employers’ obligation to provide individualized notice of Family Medical Leave Act (FMLA) rights when an employee requests leave or the employer learns that an employee’s leave may be for an FMLA-qualifying reason.

In Young v. The Wackenhut Corporation, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.), plaintiff Jacqueline Young alleged that her employer, The Wackenhut Corporation (TWC), interfered with her rights under the FMLA relating to the birth and subsequent care of her child. Although Young spoke with two members of the human resources staff before and during her planned leave, the employer failed to classify her leave as FMLA leave.

Young contended that her employer’s failure to provide proper notice and to classify her leave as FMLA leave prohibited her from making informed decisions about structuring her leave.  She further alleged that her subsequent termination for failing to return to work at the expiration of her leave further violated her FMLA rights.

In its defense, TWC maintained that it did provide notice through its summary of rights in an employee manual as well as a poster notifying employees of their FMLA rights. It further disagreed that it had denied Young any rights under the FMLA to which she was entitled.

The Court found in favor of the plaintiff because TWC failed to advise her of FMLA rights after it knew she would be taking pregnancy leave. To establish an unlawful interference of FMLA rights, the plaintiff must merely show “impairment of her rights and resulting prejudice.”

Federal law requires that employers provide a written notice designating whether a leave will be treated as FMLA leave and detailing specific expectations and obligations for the employee. The employer may use the “Employer Response to Employee Request for Family or Medical Leave” (optional form WH-381) to meet this requirement. This employer notice should be provided to the employee within one or two business days after receiving the employee’s notice of need for leave and include the following:

• that the leave will be counted against the employee’s annual FMLA leave entitlement;
• whether there are any requirements for the employee to furnish medical certification and the consequences of failing to do so;
• the employee’s right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
• any requirement for the employee to make co-premium payments for maintaining group health insurance and the arrangement for making such payments;
• any requirement to present a fitness-for-duty certification before being restored to his/her job;
• rights to job restoration upon return from leave;
• employee’s potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave; and
• whether the employee qualifies as a “key” employee and the circumstances under which the employee may not be restored to his or her job following leave.

In this case, the court found that “[i]ndividual notice requires much more than what TWC provided to the Plaintiff.” It noted that TWC failed to provide an eligibility notice, a “rights and responsibilities notice,” or a designation notice, as required under the FMLA.  In addition, the human resources staff failed to inform Young of her calculated return to work date or the need to provide a doctor’s note prior to returning.

Provided that the law applies to the employer (it must have 50 or more employees) and that the employee has the requisite amount of service (must have worked 1,250 hours during the 12 months prior to the start of leave), the FMLA offers a pregnant employee up to 12 workweeks of unpaid, job-protected leave in a 12 month period for the birth of a son or daughter, and to bond with the newborn child.  This leave entitlement carries with it two important rights: the right to continue group health coverage during the leave period AND the right to return to the employee’s employment position provided she returns promptly at the end of the leave period.

The court concluded that Young suffered unlawful prejudice because she was not afforded the opportunity to make informed decisions about her leave.  As emphasized by the court, TWC’s failure to provide individualized notice, coupled with TWC’ s failure to responsively answer Young’s questions about her rights and responsibilities, prevented her from ascertaining her return to work date.  “Had she been properly advised of her leave time, Plaintiff could have structured her leave time different,” the court concluded.

As this case highlights, employers must be sure to comply with the letter of the law when it comes to the FMLA.  Once an employee requests FMLA leave or the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, individualized notice and proper designation of FMLA leave is required. Thus, employers should make sure that members of their human resources and management staff are properly trained about their responsibilities under the law.

Please note that this case only deals with federal law implications.  There are important state law considerations to be considered whenever an employment issue is considered.  Employers must comply with all applicable laws.