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Federal Appeals Court Strikes Down Family Medical Leave Regulation

September 6, 2000

The U.S. Court of Appeals for the Seventh Circuit recently struck down a Department of Labor regulation that allowed an otherwise ineligible employee to obtain benefits under the Family Medical Leave Act (the "FMLA") because her employer did not respond promptly to her request for time off. The issue arose in Dormeyer v. Comerica Bank-Illinois, 83 Fair Empl. Prac. Cas. (BNA) ¶ 700 (7th Cir. 2000), a case involving an employee who was terminated for excessive absenteeism. Six weeks before the plaintiff was terminated, she requested leave under the FMLA because of alleged morning sickness relating to her pregnancy. The employer did not respond to her request, and subsequently terminated the plaintiff for repeated instances of unexcused absences. The employer's failure to respond was the basis of the plaintiff's FMLA claim.

The FMLA provides that an employee is only entitled to leave if he of she worked at least 1,250 hours during the twelve months preceding the day the requested leave is to begin. The plaintiff in Dormeyer conceded that she did not meet the FMLA's eligibility requirements but pointed to a Department of Labor regulation that waives the statutory eligibility requirement in cases where the employer fails to respond promptly to a request for family leave. The regulation ( 29 C.F.R. § 825.110(d)) provides that "if the employer fails to advise the employee whether the employee is eligible [for family leave] prior to the date the requested leave is to commence, the employee will be deemed eligible."

The Seventh Circuit rejected the plaintiff's argument and held that the regulation was invalid. Noting that the FMLA explicitly limits the right of family leave to employees who have worked at least 1,250 hours in the previous twelve months, the Court determined that the regulation improperly contravened the express provisions of the statute. The court stated, "Under the regulation, a worker who had worked eight hours before seeking family leave, would be entitled to family leave if the employer neglected to inform the employee promptly that he or she was ineligible. And this regardless of whether the employee had incurred any detriment as a result of the employer's silence."

The Court further stated that the regulation "allows an employee to claim benefits to which she is not entitled as a matter of law or equity."

While the Seventh Circuit recognized the authority of the Department of Labor to issue regulations to carry out the FMLA, it stated that the Department did not have the authority to effectively change the eligibility requirements set forth in the statute. The court therefore struck down the regulation, stating that it was both "unauthorized" and "unreasonable."

In invalidating the regulation, the Seventh Circuit joined two other federal appeals courts that have reached similar conclusions (McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999); Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933 (8th Cir. 2000)). In light of these decisions, the continuing viability of the regulation is in serious question. Nevertheless, employers should remember that it is in their interest to promptly respond to all requests for FMLA leave and, if it is determined that the employee is ineligible, to so advise the employee.