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Court: Employer must tell worker if time off counts as FLMA Leave

November 16, 2010

A recent federal appeals court decision serves to remind 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).

Susan Downey, a sheriff’s deputy in Louisiana, took time off work to have surgery on her knee. Sheriff Rodney Strain 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 that offered fewer benefits than the one she held before her leave. Downey argued in her suit, Downey vs. Strain, that had her employer said 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 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 wherein an employer cannot count leave against an employee’s FMLA entitlement unless the employee is so notified—meaning the FMLA "clock" does not begin ticking until the employer provides notice.

Under this penalty rule, employers who fail to provide the required notice would be required to give the affected employees more than the 12 weeks of leave provided for under the statute.

In another case, Ragsdale v. Wolverine Worldwide, Inc., the Supreme Court struck down this automatic penalty. However, the 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 appeals court found that Downey was harmed by her employer’s failure to notify her that her absence 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 continue to carefully follow theFMLA’s notice requirements, notwithstanding the Supreme Court’s ruling in Ragsdale. 

Dealer members of the CATA can discuss the matter with the association’s labor relations counsel, Franczek Sullivan, at 312-986-0300.