ELEVENTH CIRCUIT STRIKES DOWN FMLA NOTICE REQUIREMENT  |   Download free FMLA checklists and FAQ’s

Most employers now understand that for leave to be counted under the Family and Medical Leave Act (FMLA) they must give employees written notice that they are on FMLA leave. Or at least, that is what the FMLA regulations require. A recent decision by the U.S. Court of Appeals for the Eleventh Circuit, Cox v. AutoZone Inc., No. 98-6124, 7/14/99, invalidated the rule and determined that employers do not have to give the notice. This decision is the first appeals court ruling on the issue, and it applies only to employers in states covered by the Eleventh Circuit (Alabama, Florida, and Georgia). Only time will tell if other circuit courts decide to follow this decision and do away with the notice requirement.

Under the FMLA statute, employers may require employees to substitute “any of the accrued paid vacation leave, personal leave, or medical or sick leave” to which they are entitled for the otherwise unpaid 12 weeks of FMLA leave, so that the paid and unpaid time run concurrently. The FMLA administrative regulations, created and enforced by the Department of Labor (DOL), add the requirement that when an employer becomes aware that leave is being taken for FMLA purposes, it must notify the employee that the leave will be counted as FMLA leave. If the employer fails to notify the employee, the employer may not designate the leave as FMLA leave retroactively (after the fact). It may designate the leave as FMLA leave only prospectively (for the future) as of the date it notifies the employee the leave will be counted under the FMLA.

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The employer in this case provided 13 weeks of paid disability leave so the employee could take time off for the birth of her child. When the employee returned to work at the end of 15 weeks, thinking she had used 13 weeks of paid disability leave and two weeks of unpaid FMLA leave, she was demoted from her job as supervisor. The employer reasoned that her 12 weeks of FMLA leave ran concurrently with the 13 weeks of paid leave, so all of the FMLA leave to which the employee was entitled had been used, and, therefore, it had no duty under the law to reinstate her to the same position.

The employee sued, alleging she was entitled to both the 13 weeks of paid disability leave and up to 12 weeks of leave under the FMLA. She contended that since the employer did not notify her (as required by the regulations) that the paid leave counted as FMLA leave, the two leaves did not run concurrently, and she was entitled to be restored to her old job or an equivalent position.

The district court sided with the employer. It ruled that the employee had taken more than 12 weeks of FMLA leave and was not entitled to her old job because it determined the DOL regulation requiring employers to notify employees they are on FMLA leave was invalid. The employee then appealed to the Eleventh Circuit.

In arriving at its decision, the Eleventh Circuit first pointed out that the FMLA statute does not require employers to give notice to employees that their leave is being counted under the FMLA. It is only the DOL regulations that introduce this requirement. The court then examined the validity of the DOL regulations requiring the employer to give notice. The court explained that regulations have “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” In other words, the regulations must carry out the language of the statute and not enlarge on it or contradict it. When a statute does not directly address a question raised by a regulation, the court must determine if the regulation is a permissible interpretation of the law.

The court stated that because the notice requirement of the DOL regulations could allow employees to take more time off than the 12 weeks provided by the FMLA, the effect would be to extend the leave beyond what the statute actually intended. Both the statute and the legislative history indicate that only 12 weeks of leave are required, and the statute does not suggest that the 12 weeks can be extended, except voluntarily by the employer. The court also noted that if the regulations could grant more leave than the statute imposed, they would defeat the intended purpose of the statute, which is to “balance the demands of the workplace with the needs of families… in a manner that accommodates the legitimate interests of employers.” The court made it clear that since this employer exceeded “the baseline 12 weeks by providing not only more leave than FMLA but also paid leave, the employer should not find itself sued for violating the FMLA.” The court ruled that the DOL regulation was contrary to the statute and therefore invalid.

Just where does this ruling leave employers? Employers need to be aware that this is only the decision of one circuit court of appeals, and no other circuit has addressed the issue. Therefore, unless your organization is located in the Eleventh Circuit, you should continue giving notice to employees who are going on FMLA leave. The DOL is likely to continue vigorously upholding the regulation until Congress or more courts address its validity.

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This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.