Regulation Requiring Employers to Prospectively Designate FMLA Leave Is Invalid
 
September 1, 1999
 

A federal appeals court in Atlanta recently issued a ruling that significantly changes the obligations under the federal Family and Medical Leave Act of 1993 (the FMLA) for employers in Florida, Georgia and Alabama. The court held that the FMLA does not obligate employers to prospectively designate leave as FMLA leave before counting it against the 12 weeks of unpaid leave to which employees are entitled under the FMLA. In doing so, the court ruled that the FMLA regulation requiring employers to designate leave as FMLA qualifying before it could count as FMLA leave is invalid.

The FMLA provides eligible employees a total of 12 work weeks of unpaid leave during any 12-month period for specified family or medical reasons. Though the FMLA statute itself does not impose any specific requirements that employers notify employees when absences are designated as FMLA-qualifying leave, regulations promulgated under the FMLA (29 C. F. R. §825.208) require that employers generally must give prospective notice to an employee that an absence is being counted as FMLA leave in order for it to be counted against the employee's 12-week entitlement. Thus, if an employee takes leave that would qualify as FMLA leave (e.g., for a serious health condition), but the employer neglects to designate the leave as FMLA leave and notify the employee of the designation, under §825.208 the employee would be entitled to 12 weeks of unpaid leave in addition to the leave already taken.

Recently, in the case of McGregor v. AutoZone, Inc., an employer successfully challenged the validity of the designation and notification requirements contained in §825.208. In McGregor, an employee of AutoZone took 13 weeks of employer-paid disability leave when she gave birth and was demoted when she returned to work. The employee commenced a lawsuit against AutoZone in an Alabama federal court alleging, among other things, that AutoZone violated the FMLA by failing to restore her to her prior position (or to an equivalent position) when she returned from disability leave. AutoZone maintained that it did not violate the FMLA because the employee had taken in excess of 12 weeks of FMLA leave and no longer had job-restoration rights. The employee, however, contended that under §825.208 she was entitled to 12 additional weeks of leave under the FMLA because AutoZone failed to notify her that her employer-paid disability leave would also count as FMLA leave. The trial court found in favor of AutoZone and ruled that the designation and notification requirements in §825.208 are invalid.

On appeal, the federal appeals court in Atlanta (whose decisions are binding on all federal courts in Florida, Georgia and Alabama) affirmed the trial court's decision and held that §825.208 was invalid. The appeals court reasoned that the express language of the FMLA statute and its legislative history contemplate only an entitlement to 12 weeks of unpaid leave and do not suggest that the 12-week entitlement may be extended. The court noted that §825.208 improperly converted the minimum entitlement of 12 weeks of leave into an additional 12 weeks of leave in circumstances where the employer neglects to specifically and prospectively notify the employee that the employee is using FMLA leave.

The McGregor decision certainly makes compliance with the FMLA easier for employers in Florida, Georgia and Alabama. The case appears to provide a hard-and-fast rule that employees are entitled to a maximum of 12 weeks of unpaid leave for FMLA-qualifying reasons regardless of when or how the employee is notified that the leave is being considered FMLA leave. Though the McGregor decision may impact the rulings of federal courts in the future, several federal courts outside of Florida, Georgia and Alabama have previously acknowledged the validity of the designation and notice requirements of §825.208. Thus, until the law becomes more settled, employers outside of Florida, Georgia, and Alabama may face liability in the event that they fail to designate FMLA leave and notify employees as provided in §825.208.

For more information, please call Dennis McClelland at 1-888-688-8500.

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