Regulation Requiring Employers to Prospectively Designate FMLA Leave Is Invalid

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. ß825.208) 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 ß825.208 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 ß825.208. 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 ß825.208 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...

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