By Dan Dzialga, Thorp Reed & Armstrong, LLP

April 6, 2000 will be the fifth anniversary of the Department of Labor (DOL)'s Family and Medical Leave Act (FMLA). The federal law requires businesses with 50 or more employees to grant up to 12 weeks of unpaid leave a year for certain family and medical reasons. Since its introduction in 1993, the FMLA has inspired courts, lawyers and human resources managers to grapple with a variety of confusing issues and interpretations of the Act.

When does the clock start ticking?

One often-debated issue concerns proper notification. The DOL requires employers to notify workers in advance when an absence from work is being designated as FMLA leave. In a recent Alabama case, Cox v. AutoZone, Inc., Alica Cox brought suit against AutoZone contending that after returning from leave related to her pregnancy, she was demoted from her position as manager in violation of the FMLA. AutoZone maintained that the job change was legal because Cox exhausted her 12-week FMLA leave entitlement.

Ms. Cox argued that she couldn't have lost her entitlement, because AutoZone never notified her that her leave of absence was being considered against her FMLA 12 weeks. Ms. Cox's position was well supported by FMLA regulations. Not only does the DOL state that it is the employer's responsibility to designate leave as FMLA-qualifying, and to notify the employee of the designation, regulations also maintain that if the employer fails to properly notify, the leave of absence may not be counted against the employee's 12-week allowance. In that circumstance, the worker's leave may not be counted, yet still be protected by the FMLA.

Rejecting Cox's argument, the court held that the DOL adds requirements that go beyond the statutory mandates. The court pointed out that DOL regulations "definitely impose a burden on employers to tell the employee when she is using FMLA leave, or else the employee reserves the right to that leave." By following the DOL regulation, the court reasoned that an employee could be entitled to more than the 12 weeks of leave per year required under the law "& if the employer fails to give prospective notice that an absence from work is being counted against FMLA entitlements." Accordingly, the court held that the DOL "&has added requirements which not only go beyond the statute, but which are inconsistent with the stated purpose of the statute and which would grant entitlements which were not given by Congress."

Ms. Cox has appealed the district court's decision, and it is unclear how the appellate court will resolve the dispute.

Piggy-backing FMLA on top of maternity leave

In a similar case, the Eastern District of Pennsylvania in Dintino v. Doubletree Hotels Corp. decided that a plaintiff was entitled to an additional 12-week FMLA leave even though she had already taken a 12-week employer-provided maternity leave. The court focused on the DOL regulations that state it is the employer's responsibility to designate leave as FMLA-qualifying, and notify the employee of such designation. Furthermore, at least one other federal circuit court has applied the designation requirement with approval.

Given the fact that the United States Supreme Court has not as yet provided any guidance on this issue, employers should continue to timely notify employees, in writing, that their FMLA-qualifying leave is being counted against their 12-week entitlement.

However, the Cox decision provides at least some hope that with favorable appellate review, employers may someday see relief from the harsh consequences of the applicable DOL regulation.

This article is prepared in summary form and is not to be construed as legal advice or opinion on any specific fact or circumstance.

Mr. Dzialga is an associate with law firm, Thorp Reed & Armstrong, LLP in Pittsburgh, Pennsylvania. His practice includes representation of both public and private employers in various forums on matters involving the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, federal and state employment discrimination statutes, the Equal Pay Act, the Fair Labor Standards Act, the Workers Adjustment Retraining and Notification Act, and drug enforcement in the workplace. He can be reached by email at ddzialga@thorpreed.com or by phone at (412) 394-2462.