The Family Medical Leave Act--ten years later.

• Author: Cabassa, Luis A.

The Family and Medical Leave Act of 1993 (FMLA) recently celebrated its tenth anniversary. (1) Congress' stated reason for enacting the FMLA was "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." The FMLA requires employers of 50 or more employees in a 75-mile radius to provide up to 12 weeks of unpaid leave each year due to the "serious health condition" of an employee or member of the employee's immediate family or for the birth or adoption of a child. Over the past 10 years, this landmark legislation governing the employment relationship has resulted in a flurry of litigation. This article will review the published decisions of the U. S. Supreme Court and the U. S. Court of Appeals for the 11th Circuit Court interpreting the FMLA and discuss the impact of these decisions on the future of the FMLA.

Supreme Court Decisions

* Nevada Department of Human Resources et al. v. Hibbs et al., 123 S. Ct. 1973 (2003)

This past term, the Supreme Court decided that state employees may recover money damages for their employer's failure to comply with the FMLA. (2) In Hibbs, a former employee requested that his employer, the State of Nevada, grant him 12 weeks of FMLA leave to care for his ailing wife, who was recovering from a car accident and neck surgery. The state granted the requested leave. Upon the expiration of the employee's leave, the state requested that the employee return to work. When the employee failed to return to work, he was terminated. The former employee sued the state under the FMLA seeking damages and injunctive and declaratory relief. The district court awarded the employer's motion for summary judgment on the grounds that the FMLA claim was barred by the 11th Amendment and that respondent's 14th Amendment rights had not been violated. The employee appealed and the Ninth Circuit reversed. In affirming the decision oo the Ninth Circuit, the Supreme Court held that the FMLA explicitly includes states within its scope, and is a proper use of congressional power under the 14th Amendment. (3)

* Ragsdale v. Wolverine World Wide, Inc., 122 S. Ct. 1155 (2002)

In the first Supreme Court decision involving the FMLA, the Supreme Court examined the validity of a Department of Labor regulation interpreting the FMLA. In Ragsdale, an employee, who developed cancer, requested and was granted leave for 30 consecutive weeks by her employer. The employer did not notify her, however, that 12 weeks of that time would be counted as FMLA leave. After 30 weeks of absence, the employee requested further leave time. The employer denied the additional leave and terminated her employment when she did not return to work. The employee filed suit claiming that because her employer failed to notify her that 12 weeks of her leave would be counted as FMLA leave, she actually was entitled to an additional 12 weeks of leave under Department of Labor Regulations. (4)

The Supreme Court described the "FMLA's most fundamental substantive guarantee" as "the employee's entitlement to a total of 12 workweeks of leave during any 12-month period." The Supreme Court went on to strike down the Department of Labor regulation, (5) which mandated that, "If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement." (6) The result of the regulation had been that employers were categorically required to give an employee an additional 12 weeks of FMLA leave if the employer failed to comply with the notice regulations.(7) This categorical penalty for a notice violation "subvert[ed] the careful balance [between employers' and employees' interests], for it gives certain employees a right to more than the 12 weeks of FMLA-compliant leave in a given one-year period." (8) The Supreme Court noted that the effect of the regulation was to penalize employers who give more generous benefits than the FMLA requires, because only generous employers risk the burden of an additional 12 weeks if they improperly designate FMLA time during their own longer leave policies. (9)

11th Circuit Decisions

* Queen Ester Gay v. Gilman Paper Company, 125 F. 3d 1432 (11th Cir. 1997)

In Gilman the first decision of the 11th Circuit involving the FMLA, the court examined the type of notice an employee must give his or her employer under the FMLA. The 11th Circuit affirmed the decision of the lower court granting summary judgment in favor of an employer where the employee's husband told the employer that his wife would not be coming into work because she was in the hospital for tests, but refused to disclose the reasons for her hospital stay and did not keep in touch with the employer. (10) The court found the husband's phone call to the employee's supervisor did not supply the employer with sufficient information to make the employer aware that employee's absence was due to a potentially FMLA-qualifying reason. (11)

* Rosemary J. Wascura v. Neil Carver, 169 F. 3d 683 (11th Cir. 1999)

In Wascura, the 11th Circuit examined whether a public official can be sued in his individual capacity under the FMLA. (12) The court, in reversing a motion to dismiss, held that public officials in their individual capacities are not "employers" under the FMLA, and there is no federal subject matter jurisdiction over such claims. (13) The court determined that the term "employer" in the FMLA should be interpreted consistently with the similar definition set forth in the FLSA. (14) Based upon this determination, the court found no individual liability for public officials under the FMLA relying upon its decision in Welch v. Laney, 57 F.3d 1004 (11th Cir. 1995), in which the court had concluded that a local sheriff was not an "employer" under the FLSA when he acted in his individual capacity because the sheriff had no control over the plaintiff's employment when acting in his individual capacity. (15)

* Tom McGregor v. Autozone, Inc., 180 F. 3d 1305 (11th Cir. 1999)

In McGregor, an employee took 15 weeks of paid leave, and was demoted when she returned to work. (16) She sued under the FMLA. The employer argued that because the employee had taken more than 12 weeks of leave, she was not protected. (17) The employee claimed her 12...