FMLA Notice Requirements Following High Court Ruling

Jennifer L. Parent
Director, Litigation Department & Chair Business Litigation Practice Group
August 1, 2002

Interpreting the Family and Medical Leave Act (“FMLA”), the United States Supreme Court recently found a Department of Labor (“DOL”) regulation invalid. The specific regulation at issue provides that if an employer does not designate an employee’s leave as FMLA leave, the employee’s absence does not count against the employee’s 12 week FMLA entitlement. `i` While this high court ruling strikes down that DOL regulation, employers should be aware of the limited scope of that decision.

The FMLA entitles a qualifying employee to 12 weeks of unpaid leave following certain events. `ii` During FMLA leave, the employer must maintain the employee’s group health coverage. `iii` The statute specifically prohibits an employer from interfering with, restraining, or denying an employee’s rights under the statute and provides an employee with damages and other relief. `iv`

The DOL regulation considered by the Supreme Court requires an employer to inform an employee that an absence will be considered FMLA leave and to provide an employee with written notice of that FMLA designation. `v` It also requires an employer to provide an employee with information about the employee’s rights and responsibilities under the statute within a reasonable time after the employee has provided notification of the reason for leave or, if feasible, within one or two business days. `vi` As a penalty for breaching this notice regulation, the 12 week allotment of FMLA leave does not begin to run until that notice is provided, regardless of the amount of leave already taken. In the case before the Supreme Court, the employee argued that under the DOL regulation she was entitled to an additional 12 weeks of leave, despite having taken 30 weeks off from work under the employer’s more generous leave policy. She based this claim upon the fact that the employer did not notify her that her absences were being considered as FMLA leave.

In a 5 to 4 decision, the Supreme Court held that this penalty for breach of the notice requirements is contrary to the FMLA and beyond the DOL’s authority. `vii` The Supreme Court found that under the DOL regulation, the employee is automatically entitled to the 12 week leave regardless of whether the employee was actually harmed or damaged by the notice violation. `viii` The Supreme Court also noted that the FMLA encourages employers to adopt leave policies more generous than that required under the statute and to penalize the employer with an automatic 12 weeks of leave is contrary to the statute. `ix` Under the FMLA, employers may offset the 12 week FMLA entitlement from their own, more generous, leave policies. `x`

Employers should understand the scope of this decision. In reaching its ruling, the Supreme Court focused on the presumptive penalty to the employer of providing the employee with 12 weeks of leave without regard to the individual circumstances. The Supreme Court did not consider the validity of the DOL’s requirement that employers provide employees with notice that the leave is being considered FMLA leave or whether the DOL may impose any other penalty to enforce that notice requirement. It is expected that the DOL will consider new penalty regulations for breach of the notice requirements. Accordingly, employers should continue to provide employees with individual, written notice that the leave will be considered as FMLA leave within a reasonable time after being notified by the employee of the reason for leave or within one or two business days if feasible. Additionally, the decision does not change the statutory requirement that employers post a general notice informing employees of their FMLA rights. Failure to post appropriate notices may result in an employer being assessed a civil monetary penalty of up to $100 for each separate offense. `xi`

`i` Ragsdale v. Wolverine World Wide, Inc., slip op., -No. 00-6029 (March 19, 2002); 29 CFR § 825.700(a).

`ii` 29 U.S.C. § 2612(a)(1).

`iii` 29 U.S.C. § 2614(c)(1).

`iv` 29 U.S.C. § 2617(a)(1).

`v` 29 CFR § 825.208(a)(2001)

`vi` 29 CFR § 825.301(c).

`vii` Ragsdale, slip op. at 5-9.

`viii` Ragsdale, slip op. at 6-8.

`ix` Ragsdale, slip. op. at 12-13.

`x` 29 U.S.C. § 2651.

`xi` 29 U.S.C. § 2619(b).