What are the consequences of an employer’s failure to provide notice?

An employer’s failure to comply with the notice requirements could constitute interference with, restraint of, or denial of the use of FMLA leave. If an employee is able to demonstrate harm as a result of an employer’s failure to provide a required notice, the employer may be liable for the harm suffered as a result of the violation, such as lost compensation and benefits, other monetary losses, and appropriate equitable or other relief, including employment, reinstatement or promotion.

Rules published in November 2008 removed the categorical penalty the prior regulations imposed on employers for failure to designate leave-leave time not designated as FMLA leave would not count against an employee's FMLA entitlement-that was invalidated by the US Supreme Court decision in Ragsdale v. Wolverine World Wide, Inc. (SCt 2002) 82 EPD ¶40,921. Categorical penalties in other notice provisions were also removed.