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Employer Did Not Notify Employee about FMLA Leave
Court Finds Regulation Inconsistent with Statute
Good News for Employers-But Use Caution
The
FMLA regulations require
employers to give advance notice to employees when their leave will
be counted under the FMLA. Finally, just when most employers are
complying, the Eleventh Circuit calls the notice requirement
invalid. Now what should you do?
[Creating HR Policies or Employee Handbook?]
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.
Employer
Did Not Notify Employee about FMLA Leave
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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.
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.
Court
Finds Regulation Inconsistent with Statute
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.
Good News for
Employers-But Use Caution
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. |
Personnel
Policy Service, Inc.
