The FMLA allows eligible employees of covered employers 12 weeks of unpaid leave per twelve month period for child rearing in the first year after a child’s birth or placement with the employee for adoption or foster care, or for the serious health condition of the employee or of a close family member who needs the employee’s care.^[3]  Covered employers are those who employ “...50 or more employees for each working day during each of 20 or more calender workweeks in the present or preceding calender year.”^[4]  To be eligible the employee must have worked for the employer at least 12 months.^[5]  The employee also is required to have worked for 1250 hours in the 12 month period immediately preceding the commencement of the leave.^[6]  While the employee is on FMLA leave the employer must maintain the employee’s group health insurance coverage.^[7]  Upon the expiration of the leave the employer must reinstate the employee to his or her former position or an equivalent position.^[8]

The regulations issued by the Secretary require an employee who wishes to take FMLA leave to give the employer 30 days notice if the need for leave is foreseeable.^[9]  Where there is an emergency or where other special circumstances exist the employee must give as much notice as is practicable.  The employer is required by the regulations to notify the employee if the requested leave is designated by the employer as FMLA leave.^[10]  If the employer notifies the employee of its designation orally it must be confirmed in writing no later than the following payday.  If that payday is less than one week after the oral notice the written confirmation must be given by the next subsequent payday.^[11]  Written notice must be given to the employee  with information about the employee’s rights and duties under the act “... within a reasonable time after notice of the need for is given by the employee –within one or two business days if feasible.”^[12]

Employers are prohibited from interfering with employees’ rights under the FMLA or denying those rights.^[13]  Where the employer violates those rights the employee may maintain an action for lost wages and benefits or actual monetary losses such as the cost of providing care for up to 12 weeks wages.^[14]

The Ragsdale decision focused on one sentence in 29 CFR § 825.700(a).  “If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.”  Ms. Ragsdale argued that since her employer had not designated the 30 weeks it allowed her for treatment of Hodgkin’s disease as FMLA leave, the regulation entitled her to a 12 week extension of her leave.  The district court’s grant of summary judgement to Wolverine was affirmed by the Eighth Circuit which was in turn affirmed in a five to four decision of the Supreme Court.

The majority opinion emphasized that it is unreasonable to allow an employee additional leave even where the individual suffers no prejudice by virtue of not receiving notice of designation.^[15]  It is possible that the employee will be fully aware of the 12 week limit on leave and counted on the leave taken being charged against the individual’s FMLA leave entitlement even without the notice.  The Court noted that “...the regulation establishes an irrebuttable presumption that the employee’s exercise of FMLA rights was impaired and the employee deserves 12 more weeks.  There is no empirical or logical basis for this presumption...”^[16]  The regulation does not take note of the possibility that the employee may have been fully aware of the 12 week limitation or that the employee may have acted no differently if the notice had been given.^[17]  While the statute prohibits an employer from interfering with an employee’s FMLA rights the regulation does away with the need for the employee to prove that there was any such interference.^[18]

The Court pointed out that Congress’s decision to allow 12 weeks of FMLA was the result of a compromise reached during the legislative process.  An extension of leave beyond that 12 weeks by regulation fails to afford the deference due to that compromise.^[19]  Attention was further directed to the expression in the statute that it is not intended “to discourage employers from adopting or retaining leave policies more generous...” than those required by the act.^[20]  The majority reasoned that the challenged regulation would discourage employers from providing more leave than the act requires if this additional leave might not be counted towards the employee’s statutory allotment.   Where an inadvertent failure to characterize the leave as FMLA leave or an inability to do so within the time required by the regulation would penalize the employer’s voluntary offer of benefits that offer might be withdrawn.^[21]  The Court observed that the only notice requirement in the statute is for the employer to post notice of employees’ statutory entitlements in a conspicuous place.^[22]  The penalty for non compliance with that requirement is a $100 fine,^[23] far less than that imposed by the regulation.  The Court specifically reserved judgement on whether the Secretary could require additional notice, finding that the challenged regulation would be invalid nonetheless.^[24]    

The Ragsdale opinion did not have occasion to address another regulation which would likely fall by the same reasoning.  The so called “estoppel regulation,” 29 CFR § 825.110(d), in some cases would allow an employee who has not worked the statutorily required 1250 hours in the preceding 12 months to be eligible for FMLA leave.  The regulation provides, in part, that when an otherwise ineligible employee requests FMLA leave:

If the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible.  The employer may not, then, deny the leave.  Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee’s notice.

Lower courts considering this regulation have found it to be invalid as an unauthorized extension of FMLA entitlement to those who have not met the statutory requirements for eligibility.  The Seventh Circuit in Dornmeyer v. Comerica Bank-Illinois^[25] declined to allow FMLA leave to an employee who had not worked the required 1250 hours in the preceding 12 month period where the employer failed to notify her whether or not she was eligible for leave.  The court found that the Secretary did not have the power to allow leave by regulation to individuals who had not worked the hours required by the statute.  It further took cognizance of the fact that the only notice requirement in the statute is in section 2619 which requires posting in the workplace of a summary of the FMLA.  The Eleventh Circuit agreed with the Dormeyer decision in Brungart v. BellSouth Telecommunications, Inc.,^[26] also finding the regulation to be an invalid expansion of the statute.

There seems to be little room to doubt that if the estoppel regulation came before the Supreme Court the rationale of the Ragsdale decision would apply to invalidate it.