Did you know that the DOL regulations say that if you fail to notify employees of their ineligibility for FMLA leave, they then are automatically made eligible?  Fortunately for employers, the courts are not agreeing with this rule. Get your FREE access to this and 100's of FREE HR resources today.

Here’s a fact that challenges the imagination of even the most seasoned Family and Medical Leave Act (FMLA) expert: the Department of Labor (DOL) regulations penalize employers that do not give employees reasonable notice of their ineligibility for FMLA leave by making the workers eligible.  So how can the DOL, the federal agency responsible for creating these regulations, get away with extending FMLA eligibility when the Act clearly limits it?  According to a recent decision by the Eleventh Circuit Court of Appeals, it can’t.  In Brungart v. BellSouth Telecommunications Inc., No. 99-14472 (10/24/00), the court found part of section 825.110(d) of the FMLA regulations to be invalid.  The court’s decision delivered a stinging criticism of the DOL’s regulation and accused the agency of pursuing its own policy initiatives beyond the clear limits of the Act.  Since this is the second circuit court to invalidate that section, (the Seventh Circuit Court of Appeals found it invalid last July), chances are good that other circuit courts will follow the decision.

Employee Clearly Not Eligible for Leave under the FMLA                                    [Download Free Policies]

In this case, an employee applied for FMLA leave to care for her seriously ill mother two months after she had returned to work from almost two years on leave.  She had not worked the necessary 1,250 hours in the previous 12-month period as required by the FMLA statute.  The employer denied her FMLA leave a month later, after she had already taken several weeks of leave.  In addition, she was disciplined for missing work and for not calling in every day during the leave.  She was then terminated, in part, because of the absences related to the leave she took for her mother’s illness. 

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The employee sued, claiming that she should have been protected by the FMLA since the employer did not notify her of her ineligibility within two days, as required by section 825.110(d) of the regulations.  The applicable part of section 825.110(d) states that “the employee will be deemed to be eligible [for FMLA leave] if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee’s notice.”  The lower court found the regulation to be unconstitutional since it “converts ineligible employees to eligible employees,” and the employee appealed to the Eleventh Circuit.

Court Finds No Ambiguity in Statutory Definition of Eligibility

The main issue for the Eleventh Circuit to consider was whether the DOL could create a new criterion for eligibility since the employee did not meet the Act’s statutory eligibility requirements.  As a general rule, an agency is authorized to implement regulations to explain any ambiguities created by a statute.  However, as the court pointed out many times, the FMLA statute is “perfectly clear” in its limitation of eligibility.  The court further noted that Congress could have conferred the right to family medical leave on any employee who did not receive a prompt response from her employer regarding her request for leave, but Congress chose not to.  So, instead of explaining ambiguities, the DOL “attempted to pry apart the clear words of the act in order to create a gap into which it can wedge its policy preference.”  The court attributes the DOL’s attempted policy expansion to its motive of furthering the goals of the FMLA by “forcing employers to respond to leave requests within a reasonable period of time.”  However, it found that the agency “has gone too far” when it attempts “to improve legislation by altering the basic coverage provisions that Congress has written into law.”  Accordingly, the court declared that section of the regulation to be an invalid extension of the DOL’s authority.

Other Courts May Follow, but What about the DOL?

So far, this decision is only the second appeals court ruling to address the regulation, and it applies only to employers in states covered by the Eleventh Circuit (Alabama, Florida, and Georgia).  The Seventh Circuit (Illinois, Indiana, and Wisconsin) also declared the same section invalid earlier this summer in Dormeyer v. Comerica Bank, 223 F.3d 579 (7th Cir. 2000).  Arguably, if you live in any of these states, you do not have to give employees notice of their ineligibility for FMLA leave.  However, you should be aware that the DOL is likely to continue upholding the regulation until Congress or additional appeals courts address its validity.  In addition, several lower federal courts also have dealt with the issue, but with conflicting results.  Therefore, since the DOL is the agency to review any FMLA complaint, your safest bet is to follow the regulations and notify employees of their ineligibility promptly.  Otherwise, you will risk having to defend your position in court.

As an interesting side note, this decision is the second from the Eleventh Circuit to invalidate an FMLA regulation.  Last year, in McGregor v. Autozone, 180 F.3d 1305 (11th Cir. 1999), the court overruled the DOL regulations and determined that an employer does not have to give an employee written notice when he is on FMLA leave in order to count the time against the employee’s 12-week entitlement.  Again, this development is interesting, but a less risky policy is to follow the DOL regulations until the issues are clarified further.  The Editors will continue to watch the decisions for further guidance.