Employment Law: Family Medical Leave Act interpretation debated

Since the enactment of the Family Medical Leave Act in 1993, various courts have struggled with the interpretation of the statute based upon the guidelines issued by the Department of Labor, the administrative agency in charge of enforcing the act. One area of particular concern involves the employer's requirement to designate an employee's absence as FMLA leave.

Generally, an eligible employee employed by a covered employer is entitled to 12 weeks of job-protected leave under the FMLA. Once an employer gains knowledge that an employee's absence is due to a qualifying condition under the FMLA, the employer must notify the employee within two business days that the absence from work is designated and will be counted as FMLA leave. Disputes have arisen, though, between employees and employers as to the amount of job-protected leave the employee is entitled to if the employer falls to designate the employee's leave as FMLA leave.

According to the Department of Labor regulations, if the employer does not designate the employee's leave as FMLA leave, the employee's absence is not counted toward the statutory 12 weeks, but the absence is still considered "protected" under the statute. In other words, according to the Department of Labor, the employee has the full protection of the FMLA and any absence preceding the notice of the FMLA designation may not be counted against the 12-week entitlement. In one case, the court held that an employee was entitled to an additional 12 weeks of FMLA leave after the employee had already taken 12 weeks of leave because the employer did not provide the employee with written notice that the leave was designated as FMLA leave.

However, some courts are questioning whether the Department of Labor's regulations properly interpret what the statute was intended to establish. Recently, the Eighth Circuit Court of Appeals (which includes Missouri) addressed the designation issue.

In that case, an employee, who was diagnosed with cancer, requested and received leave for seven months in accordance with the employer's leave policy. After the seven months had elapsed, the employee returned to work and requested additional leave, including working on a reduced leave schedule. The employer denied the employee's request that prompted the filing of a lawsuit by the employee claiming, among other things, a violation of the FMLA. The employee contended that she was entitled to an additional 12 weeks of FMLA designated leave because the employer never formally designated any of the seven months of company leave as FMLA leave, as required by the regulations. Although the employer admitted it did not formally designate the employee's leave as FMLA-qualifying leave of absence, it argued that the Department of Labor regulations impermissibly expanded the scope of an employee's rights under the FMLA.

The Eighth Circuit reviewed the two separate Department of Labor regulations which provide that if an employee takes paid or unpaid leave and the employer does not designate the absence as FMLA leave, the leave does not count against an employee's entitlement of 12 weeks of job-protected leave. The Eighth Circuit opinion noted several courts have differed on this issue, resulting in a split of authority. Ultimately, the Eighth Circuit adopted the Eleventh Circuit Court of Appeal's reasoning and concluded the employee was not entitled to additional 12 weeks beyond seven months of leave notwithstanding the employer's lack of notice.

The court further noted that the Department of Labor failed to appreciate and differentiate those circumstances when notice should be required from employers in order to protect an employee's FMLA's substantive rights. Specifically, the court emphasized the statute states that it shall not be construed to discourage employers from adopting or retaining leave policies more generous than the requirements established by the FMLA.

The court stressed, though, that it is not holding that any regulations requiring employers to designate leave as FMLA leave are invalid. The court cited:

an employee claims the sole reason he exceeded FMLA leave was due to the employer's failure to notify the employee that the leave was designated as FMLA leave and if the employee had been so notified, he would have returned to work at the end of 12 weeks.

some cases where leave is anticipated, the employer's failure to provide notice that the leave counts against the FMLA entitlement could interfere with the employee's ability to plan and use future FMLA leave.

Based on this decision, courts are looking at the practical application of the FMLA. However, FMLA decisions made by employers still turn on an employee's particular circumstances.

(Bob Lawson Jr. practices labor and employment law representing management with the law firm of Blackwell Sanders Peper Martin LLP in Springfield.)