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

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).