Labor and Employment Articles 

Proposed Regulatory Changes to the Family and Medical Leave Act are on the Horizon

In light of recent judicial decisions interpreting the requirements of the Family and Medical Leave Act (“FMLA”), the Department of Labor recently announced that it will release proposed changes to the FMLA’s regulatory guidance in the near future. The proposed modifications are dictated by judicial opinions such as the United States Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., 122 S. Ct. 1155, 1161 (2002), which invalidates the Department of Labor’s regulation imposing a penalty upon employers for failing to notify employees prior to the commencement of FMLA leave that such leave is being counted toward their 12 week allotment.

In Ragsdale, Wolverine World Wide, Inc. (“Wolverine”) granted the plaintiff-employee a 30-week absence pursuant to its policy of providing more generous leave than that required by the FMLA. After the 30-week period expired, Wolverine refused the employee’s request for additional leave or permission to work part-time and terminated her when she did not return to work. Relying upon the regulation set forth in 29 C.F.R. § 825.700(a), the plaintiff-employee filed suit alleging that Wolverine was required to grant her twelve additional weeks of leave because it had not informed her that the 30-week absence would count against her FMLA entitlement. 

In rejecting the employee’s claim, the Court observed that the current regulation forces an employer to give an employee twelve additional weeks of leave even if the employee has not been prejudiced by the lack of notice. This regulation is incompatible with the FMLA’s comprehensive remedial mechanism, which provides that an employee must prove that the employer violated the Act by interfering with, restraining, or denying the exercise of FMLA rights. Thus, the Court invalidated the current regulation and held that, when an employer fails to designate time off as FMLA leave, an employee is only entitled to twelve additional weeks of leave if he can establish that he was prejudiced or harmed by the lack of notice.

The Department of Labor has not announced the official date that it will publish the proposed modifications to the FMLA regulations. Bose McKinney & Evans will keep you apprised of new developments as they occur.