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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