Wagner Header

The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 23 attorneys engaged exclusively in employee benefits, estate planning and employment law. Seven of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104


Illinois Office

Tel: (847) 250-1365

Fax: (847) 250-1367

414 West Deerpath Road
Lake Forest, IL  60045  







June 12, 2014


 State and Federal Law Alert




Court Rules Plaintiff's Inability to Work, not Employer's FMLA Failure, Caused Harm




In Bellone v. Southwick-Tolland Regional School District, the First Circuit Court of Appeals ruled that, because an employee suffered no harm from an employer's failures related to Family and Medical Leave Act ("FMLA") notices, the employer was entitled to prevail, despite its failures. The First Circuit reasoned that the employee's failure to return to work at the end of his FMLA leave allotment was more significant to the claim than the employer's late FMLA notices.


Applicable Law. The FMLA requires employers to send an employee an FMLA eligibility notice within five business days of learning that the employee's leave may be for an FMLA-qualifying reason. This eligibility notice must contain certain information, including the employee's rights and responsibilities under the FMLA.


Once the employer receives adequate notice from which it can determine that the employee's absence qualifies for FMLA coverage, the employer has five business days to provide the employee with a notice about its decision on whether the medical leave is considered FMLA leave. An employer's failure to provide the right notices in a timely manner may be a violation of the FMLA.


Background. In Bellone, the plaintiff filed a lawsuit against the defendant in federal district court after he was terminated for failing to return to work from FMLA leave. Specifically, the plaintiff claimed that the defendant interfered with his FMLA rights by failing to timely furnish the required notices.


The plaintiff had previously provided medical certification to the defendant that indicated that he was unable to work for an extended period of time. Although the defendant determined that the plaintiff was eligible for FMLA leave, it failed to timely send an FMLA eligibility notice. Ultimately, the defendant provided all of the required FMLA notices to the plaintiff and approved his absence as FMLA leave.


After the expiration of the plaintiff's FMLA leave allotment, the defendant sent the plaintiff a letter stating that, in order to continue to hold his job, the plaintiff had to respond with evidence of his fitness for duty within seven days. The plaintiff's physician responded, stating that there were no medical reasons that the plaintiff could not return to work.


The defendant proceeded to schedule the plaintiff to return to work in a slightly different position but with the same salary and benefits. When the plaintiff failed to return to work, the defendant terminated the plaintiff.


At trial, the district court dismissed the plaintiff's claim because it found no evidence that the plaintiff was harmed by the defendant's FMLA violations. The court noted that the defendant gave the plaintiff his full FMLA allotment, and that the plaintiff was not eligible to return to work before the expiration of his allotment. The plaintiff appealed the lower court's decision to the First Circuit.


First Circuit's Decision. On review, the First Circuit determined that, even though the defendant had violated the FMLA, actual harm was a required element of the plaintiff's claim. The First Circuit found that the plaintiff did not provide any evidence to support a finding of actual harm or that he would have acted differently had the defendant timely provided the FMLA notices. The First Circuit noted that the plaintiff's inability to work, and not the defendant's untimely FMLA notices, caused the plaintiff's harm. Accordingly, the First Circuit upheld the lower court's decision to dismiss the plaintiff's claim.


Impact of Bellone. Although the plaintiff prevailed in Bellone, employers should still be reminded of the need to provide complete and timely FMLA notices. With a slightly different fact pattern, the defendant in Bellone would be in a much less advantageous position because its delays clearly violated FMLA. Accordingly, employers are advised to process employees' requests for medical leave promptly, providing the required FMLA notices within the five-day time frames. By doing so, employers can prevent unnecessary litigation and ensure that employees are treated fairly under FMLA every time. 





This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.


Pursuant to Internal Revenue Service Circular 230, we hereby inform you that any advice set forth herein with respect to US federal tax issues is not intended or written by The Wagner Law Group to be used and cannot be used, by you or any taxpayer, for the purpose of avoiding penalties that may be imposed on you or any other person under the Internal Revenue Code.


This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.