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Employee With Work Injury Who Was Fired For Excessive Absenteeism Was Not Prejudiced By Employer’s Failure To Designate Absence Under FMLA

By on April 13, 2012 in FMLA with 0 Comments

The court reviewed the amended FMLA regulations dealing with prejudice for failing to designate FMLA time promptly.

Deborah Myers worked as a dialysis nurse at Kettering Medical Center in Ohio (KMC).  She was injured during the course of her employment on August 15, 2009.  She received temporary total disability benefits under Ohio’s workers’ compensation system.  Her injury qualified as a serious health condition under the FMLA but her employer failed to promptly notify her that her absence was designated as FMLA leave.

Myers remained out of work until the spring of 2011 when she also developed some other health conditions.  On November 23, 2010 the hospital terminated her employment due to her excessive absence from work.                

Following her termination, Myers requested permission to return to work.  Myers argued that the hospital interfered with her rights under the FMLA by not telling her that it designated 12 weeks of her 15-month leave as FMLA leave before it terminated her employment.

The District Court for the Southern District of Ohio, Western Division, reviewed the amended FMLA regulations in 2008.  The Court observed that under the new regulations, an employer has five days to timely designate leave but noted that the regulations state, “but if an employer fails to timely designate leave as specified in Section 825.300 and paragraph (a) of this section, and if an employee establishes that he or she has suffered harm as a result of the employer’s actions, a remedy may be available.”

The court concluded that the plaintiff could prove no harm here:

Plaintiff was unable to return to work until the spring of 2011.  Therefore, regardless of whether Plaintiff had received notice as to KMC’s designation of her leave as FMLA, she still would have had to take the leave commencing August 15, 2009 and ending no sooner than the spring of 2011.  That leave was FMLA qualifying and, ultimately, was counted as such by KMC.  Consequently, Plaintiff was not prejudiced in any way by KMC’s technical failure to notify her that her leave counted against the twelve-week FMLA entitlement.

The decision is an important one for practitioners and employers precisely because this situation is a fairly common one.  Employers often neglect to notify an employee who is absent for a long period of time that the time out of work is being counted under the FMLA. Obviously, best practice is to comply with the FMLA regulations and provide timely notice.  But employers should know that the legal standard is proof of “prejudice,” and retroactively designating time as FMLA leave is permitted where there is no prejudice to the employee.  The case may be found at Myers v. Kettering Medical Center, 2012 U.S. Dist. LEXIS 6767 (S.D. Ohio, W.Div. 
January 20, 2012).


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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