FMLA LIABILITY FOR EMPLOYER WHO FAILED TO COMMUNICATE
Strict Compliance with Notice Requirements Important under FMLA
The Family and Medical Leave Act (FMLA) requires employers to provide different types of notices to an employee when he or she requests FMLA leave, including a general notice about FMLA posted in a conspicuous place, an eligibility notice, a rights and responsibilities notice, and a designation notice. Failure to provide any of the required notices can have dire consequences, as a recent case out of Illinois shows.
Amanda Dusik worked as a full-time employee for Lutheran Child & Family Services of Illinois (LCFS) when she took leave to undergo knee surgery. She had worked for LCFS for five years prior to taking leave.
Her doctor advised her that she should take three to six months of leave to recover from surgery, which she told her supervisor. Dusik requested to be updated regarding her hours and how much leave she had left. LCFS only advised her that her leave was being designated as FMLA leave beginning March 31, 2015. Six days later she went in for surgery.
Several months after the surgery, when she was still on leave, Dusik contacted her supervisor to inform him/her that she was taking physical therapy, but would need at least three to six months to fully recover. The supervisor nor anyone else at LCFS ever provided Dusik with the number of hours or days she had left under FMLA. The supervisor also neglected to tell Dusik that she would be terminated if she did not return to work by a certain date.
After her FMLA leave had expired, Dusik was terminated. Dusik filed a lawsuit against LCFS alleging FMLA interference (retaliation) and failure to accommodate under the Americans with Disabilities Act (ADA).
The FMLA regulations require that an employer notify the employee of the number of hours, day, or weeks that will be counted against his or her FMLA entitlement in the designation notice. If the amount of leave needed is unknown at that time, the employer is required to provide notice of the amount of leave counted against his or her FMLA entitlement upon the request of the employee, but no more than one in a 30-day period and only if leave was taken in that period. LCFS did neither. LCFS only informed Dusik that her leave was designated as FMLA leave. Therefore, the Court found in favor of Dusik’s FMLA claim.
Further, because of LCFS failure to communicate and engage Dusik in the interactive process to determine a reasonable accommodation, the Court found in favor of Dusik’s ADA claim as well. Duski alleged that had she known she about the time remaining under her FMLA entitlement, she would have returned to work using a knee brace and some additional reasonable accommodations. However, LCFS never attempted to communicate or engage in the interactive process.
To make matters worse, LCFS had a precedent for granting up to six additional weeks of leave for other employees who needed additional time off. This was never discussed with Dusik. She was simply terminated upon the expiration of her FMLA leave. Why this was never discussed with Dusik remains unclear.