Greenberg Traurig, LLP



GT Alert

FMLA Compliance Expanded to State Agencies

June 2003
By Jerrold F. Goldberg, Greenberg Traurig, New York Office

Click for information on Adobe Acrobat.  View or download the PDF version of this Alert here.

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 court.

Jerrold Goldberg
"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 such suits.

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 administration.

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.

2. Eligibility

An employee is eligible for unpaid leave under the FMLA if he/she meets three criteria:

  • 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 for leave.

4. Certification

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.

8. Re-employment

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:

  1. The employee cannot perform the essential functions of the job, with or without accommodation.
  2. The employee would pose a significant risk to the safety of other employees.
  3. The employee’s job was eliminated or the employee was laid off because of business conditions.
  4. 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

Additional Information:

For more information, please review our Labor and Employment Practice description, or feel free to contact one of our attorneys.

This GT ALERT is issued for general purposes only and is not intended to be construed or used as legal advice. Greenberg Traurig attorneys provide practical, result-oriented strategies and solutions tailored to meet our clients’ individual legal needs. The Firm’s responsive approach to client service often cuts across legal subject matter, applying the right experience and resources to provide cost-effective solutions.