2000 Lane Reports

The Family And Medical Leave Act: Do You Know Your Rights And Responsibilities? And Did The Department Of Labor Go Too Far?

Friday, September 1, 2000
by Joshua S. Kreitzer, J.D.

The Family and Medical Leave Act ("FMLA") was signed into law by President Clinton in 1993. FMLA gives eligible employees the right to take up to 12 workweeks of leave during any 12-month period due to one or more of the following:

  • The birth of a child of the employee, in order to care for such child;
  • The placement of a child with the employee for adoption or foster care;
  • Caring for the employee's spouse, child, or parent, if that relative has a serious health condition; or
  • A serious health condition that prevents the employee from performing the functions of his or her job.

The leave permitted under FMLA may consist of paid leave, unpaid leave, or a combination of the two. If an employer provides paid leave for fewer than 12 workweeks, it can satisfy its obligations under FMLA by permitting an employee to take unpaid leave for the additional weeks, equaling 12 weeks of paid and unpaid leave. Depending on an employee's reason for requesting leave, an employer may require an employee to substitute accrued paid vacation leave, personal leave, family leave, or medical or sick leave for any part of the 12 weeks of leave to which the employee is entitled under FMLA. In effect, FMLA grants eligible employees 12 weeks of leave for the specified family and medical reasons including what the employer would grant otherwise, not necessarily in addition to what the employer would grant otherwise.

Note that not all employers are required to grant leave under FMLA, nor are all employees of covered employers eligible. A 1995 study by the Federal Commission on Leave found that only about 55% of U.S. workers worked for covered employers and were themselves eligible.

Do you know whether you — or your employees — are eligible for leave under FMLA? Take the following quiz and find out.

1. How many employees must be employed by the employer at an employee's worksite or within 75 miles of the employee's worksite for the employee to be eligible for FMLA leave?
  A. At least 15
B. At least 50
C. At least 100
2. For how long must the employee have been employed by the employer to be eligible for FMLA leave?
  A. At least 30 days
B. At least 6 months
C. At least 12 months
3. How many hours of service must the employee have worked for the employer during the previous 12 months to be eligible for FMLA leave?
  A. At least 1,250 hours
B. At least 1,400 hours
C. At least 1,600 hours

1. (B) The employee must be employed at a worksite where the employer employs at least 50 employees within 75 miles of that worksite.
2. (C) The employee must have been employed by the employer for at least 12 months (not necessarily consecutive months).
3. (A) The employee must have worked at least 1,250 hours for the employer during the 12-month period immediately preceding the commencement of the leave.

What happens if an ineligible employee requests FMLA leave — and receives no response from the employer? Such a situation was the subject of a recent court decision from the United States Court of Appeals for the Seventh Circuit. The case turned on a Department of Labor regulation stating that an employee requesting FMLA leave will be deemed eligible for such leave if the employer fails to respond to the request before the requested leave is scheduled to begin (or within two business days, whichever is later).

In that case, Dormeyer v. Comerica Bank Illinois, the plaintiff had requested FMLA leave shortly after becoming pregnant, because of her morning sickness. Her employer, the bank, failed to respond to her request for leave. Under the law, Ms. Dormeyer was not eligible for FMLA leave because she had worked fewer than 1,250 hours during the preceding 12 months.

During the two months following Ms. Dormeyer's becoming pregnant and requesting FMLA leave, she received three written warnings about excessive absences. Shortly after the third warning, she was absent from work again and as a result was fired. Ms. Dormeyer sued the bank, arguing that the bank's failure to respond to her request for FMLA leave entitled her to claim FMLA leave pursuant to the Department of Labor regulation.

The U.S. Court of Appeals for the Seventh Circuit ruled that the Department of Labor's regulation was invalid, stating that "the Department of Labor has... the authority to issue regulations to carry out the duties that Congress has assigned to it in the Family and Medical Leave Act... [but] it has no authority to change the Act." If the Department of Labor's regulation were upheld, the court stated, an employee who had worked just eight hours, for example, before requesting family leave would be entitled to family leave if the employer failed to notify the worker that he or she was ineligible.

The court recognized that a situation in which an employee relied on the employer's silence might warrant a different result. If an employer's silence misled an employee concerning the employee's right to family leave, and the employee reasonably relied on the employer's lack of response and was harmed as a result, the employer might be obligated to provide such an employee with FMLA leave, even if the employee was not legally entitled to such leave, the court stated. Such a situation would be considered "detrimental reliance."

However, the court stated, the regulation in question went beyond such circumstances by allowing an employee to claim benefits to which he or she was not entitled, conferring a windfall on the employee without any basis in legal principle. "The challenged regulation is not only unauthorized; it is unreasonable," the court stated.

Because the Dormeyer case was decided by the U.S. Court of Appeals for the Seventh Circuit, the decision is binding only in the states in the Seventh Circuit: Illinois, Indiana, and Wisconsin. As of this writing, the regulation remains on the books, which means that an employee might still attempt to use it against an employer in the rest of the United States. Whether such an attempt to use the regulation would be successful remains to be seen. Federal district courts in other states have previously deemed the regulation invalid, and other federal appellate courts might find the Dormeyer decision persuasive as well, since it was written by the Seventh Circuit's influential Judge Richard Posner. On the other hand, the Department of Labor might remove the regulation or amend it to cover only employees who rely on an employer's silence to the employees' detriment.

The best practice for an employer who receives a request for FMLA leave is to respond to it expeditiously. In most cases, the employer should be able to determine easily whether it employs the required minimum number of employees and whether the employee requesting FMLA leave has been employed for the required minimum length of time and has the requisite hours of service. A prompt employer response to a request for FMLA leave should preclude a detrimental reliance claim by an employee.

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The Lane Report is a publication of The Law Offices of Marc J. Lane, a Professional Corporation. We attempt to highlight and discuss areas of general interest that may result in planning opportunities. Nothing contained in The Lane Report should be construed as legal advice or a legal opinion. Consultation with a professional is recommended before implementing any of the ideas discussed herein. Copyright, 2003 by The Law Offices of Marc J. Lane, A Professional Corporation. Reproduction, in whole or in part, is forbidden without prior written permission.

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