Statute Of Liberty

What to do with your debilitatingly fatigued, your pregnant, your deathly ill yearning to be free from work for 12 weeks

The Family and Medical Leave Act (FMLA) provides employees with job security when they need it most. Under the law, eligible employees must be granted up to 12 weeks of unpaid leave for childbirth or adoption, serious health conditions or to care for family members with serious health conditions. The law, which affects businesses with 50 or more employees, requires employers to restore employees to their old jobs or the equivalent on their return.

While keeping a position open can be a strain for employers, it makes good business sense to retain your valued employees and bear with them through times of crisis or new family responsibilities. But not everyone who applies for FMLA leave-or sues over its denial-is a deserving employee in real need. Some use the law as an excuse for absenteeism or as another way to exact money from employers in court. The good news: Courts are finding in favor of employers who hold the line on abuse.

Consider a case recently decided by the 7th U.S. Circuit Court of Appeals. A bank teller with a history of absenteeism missed even more work after she became pregnant. After three written warnings about the absenteeism, the bank fired her. Six weeks earlier, the teller had applied for FMLA leave, claiming severe morning sickness. The employer didn't respond to the request because the employee hadn't worked at the bank long enough to be eligible for FMLA leave-and that became the basis for the teller's FMLA claim.

The teller cited a Department of Labor regulation stating that when an employer fails to advise an employee whether he or she is eligible for family leave prior to the date the leave is to begin, the employee will be deemed eligible. The district court that heard the case dismissed the teller's FMLA claim, however, and on July 24, the 7th U.S. Circuit Court of Appeals agreed. The court ruled that not only was the employee ineligible for leave, but the regulation itself was an example of a federal agency overstepping its authority. Congress had made its intent perfectly clear: Employees who had worked fewer than 1,250 hours for the company in the preceding 12 months were not eligible for leave. Yet under the regulation, the court observed, workers who had worked only eight hours before seeking family leave would be entitled to up to 12 weeks' leave with job security if their employers neglected to inform them promptly that they were ineligible-even if the employees suffered no harm because of it.

"The regulation allows an employee to claim benefits to which [he or] she is not entitled as a matter of law or equity, thus conferring a windfall by extinguishing the employer's defense without any basis in legal principle," the court ruled. That, the court declared, is both unauthorized and unreasonable. Several district courts had reached the same conclusion, but this was the first time the issue had reached the appellate level. Unless another federal circuit rules the other way, this ruling should close that eligibility loophole. Still, unless Congress forces the Labor Department to rescind its regulation (and there's no current move to do so), employers should still respond within two days to FMLA requests to avoid the possibility of a lawsuit.

Freelance writer Jane Easter Bahls specializes in business and legal topics.

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This article was originally published in the January 2001 print edition of Entrepreneur with the headline: Statute Of Liberty.

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