SUPREME COURT CLARIFIES FMLA NOTICE REGULATIONS

By Zachary B. Ward, Esq.

In Ragsdale v. Wolverine World Wide, Inc., (03/19/2002), the Supreme Court recently closed a "loophole" in the Family and Medical Leave Act ("FMLA") by striking down a Department of Labor ("DOL") regulation that allowed an employee to lengthen the maximum twelve-week FMLA leave period when the employer failed to give timely notice that the FMLA leave period had been "triggered."

As a brief bit of background, the FMLA provides twelve weeks of unpaid leave to qualifying employees who experience certain qualifying events, such as the birth of a child or a "serious health condition." Because the FMLA's provisions are technical and can be difficult to apply in the "real world," the DOL issues regulations that interpret and often supplement federal employment laws. Although DOL regulations are not binding on courts, they often are consulted by courts. The particular DOL regulation involved in Ragsdale required employers to notify FMLA-eligible employees that an FMLA leave period has been "triggered" and penalized employers who failed to provide timely notice by not counting the leave taken prior to notice against the maximum twelve-week FMLA period. See 29 C.F.R. § 825.700. This regulation was especially harsh to employers and often resulted in an unintended benefit to employees on leave.

The facts in Ragsdale involved an employee who was diagnosed with cancer and was receiving treatment for her medical condition that required her to take leave from work. The company for whom the employee worked had a generous leave policy that granted a total of 30 weeks leave to the employee. Apparently, during the employee's 30 weeks of leave, the company never notified her that her FMLA leave period had been "triggered." After the employee had used all of her 30 weeks of leave, she requested more time off but the company refused. The employee failed to return to work and the company ultimately terminated her. The employee then sued the company claiming that she was entitled to an additional twelve weeks of leave under the FMLA because she was never notified her that her FMLA leave period had been "triggered."

The Court rejected the employee's argument and held that DOL regulation was invalid because it created a penalty against employers that was not permissible under the FMLA. The Court said that Congress, in enacting the FMLA, never intended to penalize employers who provided more generous leave policies than the twelve weeks of leave that the FMLA requires. The Court held that the DOL exceeded its authority by issuing this regulation and struck it down.

Although the Court struck down this particular DOL regulation, employers should be aware that other regulations remain that require employers to provide notice regarding the FMLA to their employees, such as mandatory postings. It is also safe to assume that the DOL will issue a new regulation regarding the duty to give notice to FMLA-eligible employees that FMLA leave has been "triggered" and the DOL may include some type of fine or other penalty to ensure that employers comply. Accordingly, it is a good idea for employers to give notice to FMLA-eligible employees that their FMLA period has triggered to promote compliance and consistency in their employment practices and reduce the likelihood of lawsuits alleging FMLA violations.

Zachary B. Ward is an associate with AGG and is a member of the firm's Litigation and Employment Law Practice Groups. If you have any questions concerning the issues presented in this article or any other employment related need, please contact Mr. Ward at 404.873.8506 or by e-mail at Zachary.Ward@agg.com, or any other member of AGG's Employment Law Practice Group.

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