1/2/08
A recent decision by a federal appeals court serves as a reminder to employers that they must notify employees when medical leave time is to be counted against their available leave under the Family and Medical Leave Act ("FMLA"). Downey v. Strain. Downey, a sheriff's deputy, took time off work to have surgery on her knee. Her employer counted the time against her available FMLA leave, but failed to notify her that it would do so. Downey did not return to work until after she exhausted her remaining FMLA leave. Although she was not discharged, she was reassigned to a different job offering fewer benefits than the one she held before her leave. Downey argued that, had her employer notified her that her leave would be counted against her 12 weeks of FMLA leave, she would have re-scheduled her surgery and not exhausted her leave.
A Department of Labor ("DOL") regulation requires employers to notify employees when their leave will be designated as FMLA leave and counted against their 12-week leave entitlement. The regulation also includes a penalty provision, under which an employer cannot count leave against an employee's FMLA entitlement unless it notifies the employee that it will do so – meaning that the FMLA "clock" does not begin ticking until the employer provides notice. Under this penalty rule, employers who fail to give the required notice would be required to give the affected employees more than the 12 weeks of leave provided for under the statute. In Ragsdale v. Wolverine Worldwide, Inc., the Supreme Court struck down this automatic penalty. However, the Supreme Court left open the possibility that the notice requirement might be enforceable if an employee was actually harmed by the employer's failure to give notice.
In Downey, the Court of Appeals found that Downey was actually harmed by her employer's failure to notify her that her leave would count as FMLA leave, and that the notice requirement in itself was a valid and enforceable regulation. Accordingly, it affirmed the jury verdict against Downey's employer. While other federal appeals courts have yet to address this issue, this case is likely to influence future rulings. Employers should therefore continue to carefully follow the FMLA's notice requirements, notwithstanding the Supreme Court's ruling in Ragsdale.
