March 22, 2002 
No. 2002-05

The Family and Medical Leave Act (FMLA) does not require employers to provide more than 12 weeks of leave if they fail to notify employees that their time-off has been designated as FMLA leave. This week, in Ragsdale v. Wolverine World Wide, Inc., the U.S. Supreme Court overturned a U.S. Department of Labor (DOL) rule that required employers either to notify employees that time-off was designated as FMLA leave or to give the employee additional 12 weeks of leave. 29 C.F.R. 825.700(a).

In Ragsdale, the employer had already granted the employee 30 weeks of leave, but failed to notify the employee that it was counting her time-off as leave under the FMLA. When she wanted more time-off and was refused, she sued the employer. She alleged that the DOL regulations required the employer to give her an additional 12 weeks of leave because the employer had not notified her that it was counting the time-off as FMLA leave. 

The U.S. Supreme Court reasoned that the FMLA granted employees 12 weeks of leave and no more. The DOL regulation imposing a mandatory penalty of another 12 weeks of leave is contrary to what Congress intended to require when passing the law. The Court noted that the penalty has no "substantial relationship" to the harm suffered by the employee for lack of notice and is contrary to the Act's comprehensive remedial scheme for violations. Under the regulation, the employee is relieved of the burden of showing any real impairment on their rights and resulting prejudice. 

The Court, however, expressly declined to address whether the notice and designation requirements of the DOL regulations are themselves valid. Thus, DOL regulations continue to require employers to notify employees if their time-off is designated as FMLA leave - but a violation of the regulation will not automatically result in additional FMLA leave.

In theory, where time-off is not designated as FMLA leave, an employee may show harm or prejudice and recover some damages. This situation would not likely arise where the employee's own illness forces him or her to take time off, for presumably the employee would have to take time-off no matter what. Harm could arise, however, where there is a choice whether an employee or another family member takes time-off to care for an injured or ill family member. In such situations, designation as FMLA leave may make a difference over how much leave is taken and by which family member.

Our recommendation:

Employers should not read Ragsdale as authority for disregarding FMLA designation and notice requirements.

Employers should continue the practice of notifying employees that time-off constituted FMLA leave whenever practical and possible. Failure to notify employees of FMLA designation, however, does not necessarily give an employee additional time-off. But before terminating employment when the 12 week limit on FMLA leave is exceeded and designation and notice was not perfected, the employer should undertake a careful inquiry of the possible prejudice and harm to the employee from its failure to designate and notify the employee.

A cautionary note about the Oregon Family Leave Act (OFLA): Although OFLA contains no similar designation and notice requirement, the message from Ragsdale that 12 weeks means 12 weeks cannot be carried over to OFLA leave. Under OFLA, an employee can still piggy-back various types of leave and get 36 weeks in certain situations.

If you have any questions about coverage or eligibility, please contact us.

Jeff Chicoine jchicoine@nsslaw.com 
Wayne Landsverk wlandsverk@nsslaw.com 
Verne Newcomb newcomb@nsslaw.com 
Jack Schwartz schwartz@nsslaw.com 
Rick S. Pope rpope@nsslaw.com 
Brent H. Hall bhall@nsslaw.com 
Thomas Bahrman tbahrman@nsslaw.com

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