6 September 2000

When Does The Clock Start Running On FMLA Leave?

United States Strategy
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Employers continue to struggle in complying with the federal Family and Medical Leave Act (FMLA) and its corresponding regulations. The FMLA requires employers to provide eligible employees with 12 workweeks of unpaid leave in any 12-month period to care for newborn or newly-placed adoptive or foster children, to care for certain relatives with serious health conditions, or to deal with their own serious health conditions.

But when does the clock start running on an employee’s leave? Employers might assume that the FMLA leave period begins on the first day of absence. But Department of Labor (DOL) regulations require employers to give notice to employees who request leave that the absence will count against their FMLA 12-week total. Until the notice is given, the clock doesn’t start running.

This is a significant issue because an employee who is out of work for no more than the FMLA-protected 12-week period is entitled to be restored to the job the employee held before the leave. An employee who is on leave longer than the FMLA period has no such rights.

It’s easy for employers to run afoul of the notice regulation. In most cases, unless the employer gives appropriate notice within two business days after the employee’s leave begins, the designation is not retroactive. Thus, if Human Resources (or whoever else is responsible for giving notice at a particular employer) is not informed of a FMLA-qualifying leave until a number of days or weeks after it has begun – and, therefore, gives a late designation notice – the employee’s FMLA rights will extend beyond the 12 weeks of leave required by the statute.

For example, if the employer does not give the designation notice until the employee has been gone for two weeks, the DOL regulations say that the 12-week period did not start running until the notice was given. The result, in this example, is that the employee can be on a leave protected by the FMLA for 14 weeks, rather than 12 weeks. (Before the designation notice is given, the employee still gets all the protections of the FMLA, but the employer may not count the time against the 12-week annual total.) Employers who do not understand this regulation have gotten into trouble by discharging or failing to reinstate employees who have been absent for more than 12 weeks, only to find that under the DOL regulations the employees still had FMLA leave rights. Employers who completely failed to give the designation notice have been shocked to learn that when they thought that the FMLA 12-week period had ended, it had not, according to the regulations, even begun.

Recent lawsuits have challenged the validity of these DOL regulations with mixed results. The United States Courts of Appeals for the Eighth Circuit (which includes Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Missouri, and Arkansas) and the Eleventh Circuit (which includes Alabama, Georgia, and Florida) have ruled that the DOL regulations are invalid because they may expand leave entitlements to more than the 12 weeks specified in the statute. However, the United States Court of Appeals for the Sixth Circuit (which includes Michigan, Ohio, Kentucky, and Tennessee) has gone the other way. Federal District Courts in several states have also reached conflicting conclusions. This leaves the final determination in the hands of the Supreme Court, which has yet to take a case on this issue.

Even those courts that have held the regulations to be invalid have said that there may be circumstances where the employer’s failure to give the designation notice promptly could violate the rights of the employee. For example, if a lack of notice or tardy notice confused or misled an employee about when he or she had to return to work, a court might conclude that a discharge of that employee violated his or her FMLA rights, even though the employee had been away from work for more than 12 weeks.

What does this mean for employers? In all states, employers should structure their practices and policies so that qualifying leave is designated under the FMLA as soon as possible, and appropriate and timely notice is given to the employee. If the designation is not given within the short time period specified in the DOL regulations, the employer should assume that the 12-week period does not start to run until the notice is actually given.

In states within the Eighth or Eleventh Circuits, employers who make a mistake might in some situations be saved from liability by the precedents of those courts’ rulings. However, in all states, employers should assume that they still must comply with the DOL regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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