• What Does the Supreme Court's New FMLA Decision Mean for Employers?
  • May 6, 2003
  • Law Firm: Ford & Harrison LLP - Atlanta Office
  • As most employers know, the U.S. Supreme Court recently invalidated the Family and Medical Leave Act ("FMLA") regulation that precludes employers who fail to give notice of FMLA leave designation to employees within two business days from counting any of the leave taken prior to designation as FMLA leave. See Ragsdale v. Wolverine World Wide, Inc.

    The Court, however, refused to address whether the notice portion of that regulation was valid. It held only that the punishment - the inability to count the prior leave as FMLA leave - meant some employees would get more than the statutorily mandated twelve weeks of FMLA leave and went beyond the letter of the statute. So, what does this mean in practicality? Employers should continue to do the following when faced with a leave situation that may be FMLA-qualified:

    • Use Employer Designation Forms or some other written notice to the employee;
    • Designate leave as FMLA as soon as practicable after obtaining the necessary information from the employee;
    • Display the FMLA Rights poster;
    • Include an FMLA policy in the employee handbook or otherwise distribute it to employees;
    • Give employees the appropriate FMLA Rights information and forms upon taking or requesting leave.

    The impact of the new Supreme Court decision is important. Under this new decision, if an employer fails to designate leave as FMLA leave and the employee still gets at least twelve weeks of leave, the employer is not required to give the employee twelve more weeks of "FMLA leave" because of the employer's failure to designate. For example, if it takes the employer a week or more after the employee goes out on leave to get the information to determine whether the FMLA applies, the employer can now count the entire leave as FMLA leave, not just the leave taken after the employer determines that the FMLA applies and so notifies the employee. Additionally, if there is a delay in sending out the FMLA forms (through error or inadvertence), and the employee is out on leave for some period of time before the forms go out and FMLA leave is designated, the entire time the employee has been out on leave, if FMLA-qualified, can now count toward the twelve-week maximum.

    REMEMBER: It is still important to designate leave as FMLA in writing to the employee as soon as possible. However, if there is some time lag between the beginning of the employee's leave and the employer's designation/notification of FMLA leave to the employee, the leave time before the FMLA designation/notification can count toward the twelve-week maximum FMLA leave.