The Federal Family and Medical Leave Act (“FMLA”), which, among other things, affords eligible employees up to 12 weeks of unpaid leave for the employee’s own serious medical condition and reinstatement to the employee’s former or equivalent position, includes stringent notice obligations for employers. A New Jersey District Court recently reinforced the importance of complying with the statute’s notice requirements. In Antone v. Nobel Learning Communities, Inc.,  the court denied the defendant employer’s motion to dismiss, rejecting its argument that the employee was not protected by the FMLA when she was terminated more than 12 weeks after she commenced leave because the employer failed to provide the requisite FMLA information to the employee. The Court similarly denied the employer’s motion to dismiss disability retaliation claims based on improper notification required by the FMLA.

Federal FMLA Notice Requirements

An employee seeking to take a leave of absence under the FMLA does not need to specifically request “FMLA Leave.” Rather, the employee need only notify the employer of the need for leave. This notification triggers the employer’s obligation to inform the employee of his/her eligibility to take FMLA leave within 5 business days absent extenuating circumstances and of his/her rights and responsibilities with regard to such leave. This eligibility and rights and responsibilities notice must detail the “specific expectations and obligations of the employee and explain any consequences of a failure to meet these obligations” and may be accompanied by an required Certification of Health Care Provider form. Once an employer designates a leave as covered by the FMLA, it must provide a designation notice which informs the employee of the amount of leave counted against the employee’s FMLA leave entitlement. The Department of Labor provides sample notices of eligibility and designation, as well as health care provider certifications for an employee’s own health condition and that of a family member, when applicable.

Relevant Facts

The Plaintiff in Antone experienced health problems which affected her ability to stoop, bend and walk. On or about May 28, 2009, Plaintiff informed Defendant’s Human Resources Administrator that she needed time off for medical treatment in a hospital, a reason permitted to take FMLA leave. More than a month later, Defendant sent Plaintiff a Certification of Health Care Provider Form. Defendant, however, failed to provide an eligibility notice or otherwise inform Plaintiff of her rights under the FMLA including her right to take 12 weeks of leave. Plaintiff timely returned the completed Health Care Provider form to Defendant indicating that she would return to work by August 28, 2009 – 12 weeks and 8 days after she began leave. In late August, Defendant informed Plaintiff that she would be terminated because her physician approved her to return on August 28, which is 8 days after the 12 weeks expired.

Plaintiff claimed that Defendant discriminated against her in violation of the FMLA, interfered with her rights under the FMLA and retaliated against her in violation of the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) both of which protected disabled individuals from retaliation for engaging in protected activity. She also sued her supervisors individually. Nobel moved to dismiss Plaintiff’s complaint arguing that Plaintiff was not protected by the FMLA because she was terminated after her FMLA expired. Defendant similarly moved to dismiss Plaintiff’s retaliation claims.

Court’s Decision

The Court denied Defendant’s motion to dismiss the FMLA discrimination claim and the retaliation claim similarly because Nobel did not provide Plaintiff proper and timely notice of her rights under the FMLA. Although Plaintiff was terminated after she exhausted 12 weeks of leave, the Court found that had Plaintiff been given the appropriate notice and knew when her leave expired, she could have taken a shorter leave and returned immediately after 12 weeks.

With regard to the disability claim, an employer is required to engage in a dialogue known as the interactive process with an employee claiming to be disabled to consider providing the employee a reasonable accommodation. An employee’s request for an accommodation is considered “protected activity.” Both the ADA and LAD prohibit an employer from retaliating against an employee who engages in protected activity. Here, the Court found that after Plaintiff exhausted her FMLA she might have been entitled to additional leave under the ADA and the LAD as a reasonable accommodation which she was prevented from . The Court held that an allegation of firing an employee who engages in protected activity (i.e., requests a reasonable accommodation) is retaliatory and sufficient to withstand a motion to dismiss.

Practical Guidance for Employers

When an employee requests a leave of absence, an employer covered by the FMLA should carefully consider the basis for the request and timely provide required information in writing to the employee requesting leave. If an employer fails to provide the requisite notification and information or delays providing it, the omission could later taint an employment action. Attorneys in Gibbons Employment & Labor Department are available to assist employers with FMLA and disability leave management needs.


Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.