FMLA Compliance Expanded to State Agencies
By Jerrold F. Goldberg, Greenberg
Traurig, New York Office
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The United States Supreme Court recently ruled that employees of a state
government or state agency may sue a state for damages under the Family
and Medical Leave Act (“FMLA” or “the Act”). In Nevada Department of
Human Resources v. Hibbs, ____ S.Ct.___, 2003 WL 2120426 (May 27, 2003),
the Court ruled that Congress acted within its constitutional authority
in abrogating the general immunity states enjoy from private suits in federal
|"The United States Supreme Court
recently ruled that employees of a state government or state agency
may sue a state for damages under the Family and Medical Leave Act."
The FMLA grants employees with at least one year of service, who are
employed by employers of at least 50 employees, up to twelve weeks of unpaid
leave per year. The Act by its terms applies to “the government of a State
or political subdivision thereof” and “any agency of…. a State or political
subdivision of a State.” Thus, the applicability of the FMLA to state agencies
is clear; in Hibbs, the Court had to decide whether Congress had
the power to regulate the conduct of a state in light of the principle of
state sovereignty under the Eleventh Amendment which generally precludes
The Court ruled that Congress’ power to permit private suits against
a state or state agency under the FMLA derived from the Fourteenth Amendment,
specifically Section 1 of the Fourteenth Amendment, which grants “equal
protection” under law, and Section 5 of the Fourteenth Amendment, which
grants Congress the power to enforce the Amendment’s guaranties. The Court
found that the FMLA was intended to protect an employee’s right to be free
from gender-based discrimination in the workplace, and that Congress was
justified in so acting based on historical evidence of gender discrimination
by the states against both women (e.g., in the administration of leave benefits)
and, ironically, men as well (absence of paternity leave statutes or policies
comparable to maternity leave statutes and policies).1
The Hibbs decision does not impact the continued applicability
of the FMLA to private sector employers with 50 or more employees. Thus,
the Act’s complex rules of eligibility and utilization remain an issue for
private sector employers. Below is a summary of the pertinent rules governing
FMLA Fact Sheet
1. Leave Allowance
Eligible employees are entitled to 12 weeks of unpaid leave in any 12-month
period for any of the following reasons:
- Birth or care of a newborn;
- Adoption, or foster care placement of a child;
- To provide necessary care for a close family member (spouse, son,
daughter, or parent) who has a serious health condition; or
- Serious health condition which makes an employee unable to perform
the functions of his/her position.
An employee is eligible for unpaid leave under the FMLA if he/she meets
- Has been employed by the employer for at least 12 months;
- Has performed at least 1,250 hours of service during the previous
12-month period: and
- Is employed at a worksite where the employer employs at least 50 employees,
or the employer employs 50 employees within a 75 mile radius of that worksite.
3. Employee Notice
An employee must provide timely notice of his/her need for unpaid FMLA
leave. If the need for leave is foreseeable, such as birth or planned medical
treatment, the employee must notify the employer of the need for leave at
least 30 days prior to the start of such leave. If the need for leave is
not foreseeable, the employee must provide notice as soon as it is practicable,
generally within one or two days of the employee’s learning of the need
Requests for leave due to birth, adoption, or foster care placement of
a child must be supported with certification by a health care provider or
placement agency in the case of adoption or foster care placement. All requests
for leave for an employee’s serious health condition or to care for a family
member with a serious health condition must be supported with a certification
by the health care provider of the eligible employee or family member.
5. Intermittent or Reduced Leave
Employees may, under certain conditions, be permitted to take intermittent
leave or work on a reduced schedule. “Intermittent leave” is leave taken
in separate blocks of time rather than one continuous period of time.
6. Employee Benefits and Salary
Leave granted under the FMLA is unpaid leave. However, an employer may
require an employee eligible for unpaid leave to utilize paid leave (such
as vacation and sick days) for any part of the 12-week leave period.
7. Key Employee Decision
An employer has the right to deny restoration rights to individuals who
qualify as “key” employees under the FMLA.
An employee on leave for up to 12 workweeks is entitled upon return from
leave to be restored to the position held by the employee when the leave
began or an equivalent position with equivalent pay, benefits, and other
terms and conditions of employment.
9. When Restoration Rights are Denied
There are four reasons why an employee need not be restored to his or
her former position at the end of FMLA leave:
- The employee cannot perform the essential functions of the job, with
or without accommodation.
- The employee would pose a significant risk to the safety of other
- The employee’s job was eliminated or the employee was laid off because
of business conditions.
- The employee was identified as a “key” person and informed of this
designation before or during the FMLA leave and the employee’s return
to the job would represent an economic hardship for the employer.
Courts continue to interpret and address the difficult issues posed by
the FMLA’s administrative scheme, and companies should therefore involve
competent employment counsel when they have a question.
1 In dissent, three of the Justices urged that
Congress did not have sufficient evidence of a pattern of unlawful conduct
by the states involving gender discrimination, particularly after the passage
of Title VII of the 1964 Civil Rights Act. Justice Scalia focused particularly
on the absence of such evidence with regard to Nevada.
© 2003 Greenberg Traurig
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