neof the DOL's FMLA regulations, 29 C.F.R. §825.208, requires employers to alertemployees when an absence is being counted as FMLA leave, to provide that alertprior to the commencement of the leave, and states that only after thisnotification has been provided may an employer begin counting an employers daysoff as applying against the 12-week entitlement.
The regulation states that, "In all circumstances, it is the employer'sresponsibility to designate leave, paid or unpaid, as FMLA-qualifying, and togive notice of the designation to the employee as provided in thissection."
It is significant that the regulation places the responsibility on the employerto designate that requested leave qualifies under the FMLA. If an employer failsto give prior notice that an absence will be counted as FMLA leave, theregulations says that the time off simply does not count against the employee's12-week FMLA entitlement. If an employer fails to notify employees that time offis considered FMLA leave, than that employer is then obligated to allow 12 weeksof FMLA leave in addition to any other leave provided.
The courts do not necessarily agree with the DOL on this point. In McGregorv. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999), the 11th U.S. CircuitCourt of Appeals - with federal jurisdiction over Alabama, Florida and Georgia -struck down that regulation for employers within these states, declaring theregulation to be "invalid and unenforceable," because it placesburdens on employers that are beyond those set forth by the FMLA statute.
In McGregor, an employee returned from a 15-week leave, learned that herformer position was no longer available to her, and then sued her employer forviolations of the FMLA. Referencing the language of the regulation, she claimedthat she was entitled to 13 weeks of employer-provided paid disability leave andthen up to 12 weeks of unpaid FMLA leave. She based her suit on the fact thather employer failed to notify her, prior to her absence, that the two leavesmust run concurrently as FMLA leave.
The 11th Circuit rejected the DOL regulation and stated that the employee did nothave the right, under the FMLA, to be restored to her prior position, becauseshe had been absent for more than the statutorily protected amount of time (12weeks). In upholding summary judgment in favor of the employer, the Court didnot permit the DOL's regulation to create an entitlement to an extra 12 weeks ofmedical leave to the employee.
The 8th U.S. Circuit Court of Appeals - which has jurisdiction over federalmatters in Arkansas, Iowa, Minnesota, Nebraska, and North and SouthDakota--recently became the second federal appellate-level court to declareunenforceability of the DOL's regulation.
In Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933 (8th Cir. 2000),the employee asked for and was provided medical leave so that she could receivecancer treatment. Before she took her leave, her employer did not specificallydesignate any part of her time off as FMLA leave. The company had a policystating that employees requiring time off for a medical condition were entitledto seven months of leave. When the employee was unable to return to work afterseven months, her employment was terminated based on company policy.
Upon learning of the termination, she asked for twelve additional weeks of leaveunder the FMLA. When the employer denied her request, she sued the company forviolating the FMLA. A federal district court granted summary judgment in favorof the employer, which the employee then appealed.
On appeal, the 8th Circuit upheld judgment in favor of the employee, statingthat the DOL regulation improperly expanded the FMLA's guaranteed minimum leavetime into an unearned "entitlement" of 12 extra weeks of leave.Further, the Court stated that 12 weeks of leave is both the minimum and maximumamount of leave that am employer is required to provide under the FMLA.
Nota trap for employers
These cases aside, the courts have not invalidated every DOL regulationrequiring employers to designate leave as FMLA-related. In fact, the courts haveruled that there may be circumstances under which an employer's failure toprovide advance notice of FMLA might deny an employee intended to mandate a minimum of 12 weeks of leave for employees, andthat Congress, "did not intend to construct a trap for unwary employers whoalready provide for twelve or more weeks of leave for their employees."
It's also important for employers to note that one federal appellate court hasmade decisions that are in direct conflict to those reached by the 8th and 11thCircuits. In Plant v. MortonInternational, Inc., 212 F.3d 929 (6th Cir. 2000), the 6th Circuit,encompassing federal courts in Ohio, Tennessee, Michigan and Kentucky, upheldthe DOL's guidelines stipulating that employers are legally obligated to notifyemployees in advance of the leave if that leave is to be designated under theFMLA. The Court based its decision on the fact that the FMLA itself is silentregarding the issue of advance notice.
The 6th Circuit ruled that public policy is better served by requiring employers toprovide ample notice to employees of their rights under the statute. However,the 6th Circuit stands alone, to date, in this position.
Theinformation contained in this article is intended to provide useful informationon the topic covered, but should not be construed as legal advice or a legalopinion. Also remember that state laws may differ from the federal law.