WHY THE FAMILY AND MEDICAL LEAVE ACT SHOULD BE EXPANDED TO INCLUDE A DUTY TO NOTIFY AND OTHER PROTECTIONS

For twelve years, Rosemary Wertz worked at the Philadelphia law firm of Post & Schell as a legal secretary. Then she became pregnant and took a two-month leave during her pregnancy, due to complications, and an additional two-month leave after the baby was born.

Afterwards, when she tried to return to work, she was informed that her position had been filled. Wertz filed suit, alleging that the firm, by refusing to reinstate her, had violated her rights under the Family and Medical Leave Act (FMLA).

Wertz' four months of leave within a single twelve-month period exceeded the FMLA's twelve-week guarantee. But that is not the end of the story. Her case raises an important issue, one that has divided courts across the country: Do employers have a duty to tell employees when their leave is being counted against the FMLA's twelve-week allotment?

Wertz' case also highlights the very limited protections that employees receive under the FMLA–protections that should be expanded.

Enacted in 1993, the FMLA requires employers with more than 50 employees to provide up to twelve weeks of unpaid birth, new parenting (for both mothers and fathers), or medical leave. The leave is available only once in any twelve-month period.

When an employer offers no maternity or disability leave to its employees, all leave is FMLA leave, counting against the twelve-week allotment. But what if an employer does provide different types of leave, as Wertz claims was the case at her law firm? In that case, the calculation of FMLA leave becomes more complex.

The FMLA requires only that employers provide a minimum of twelve weeks of unpaid leave in specified circumstances — not that they provide 12 weeks of leave above and beyond the paid and unpaid leave that they otherwise offer. Thus, paid and unpaid maternity leave and temporary disability leave — as well as vacation, sick and personal leave, if they can be used to cover absences related to childbirth, new parenting, or medical problems–can count toward the FMLA requirement.

Because the leave is unpaid, what the FMLA really provides is the right to continued participation in a group health plan (if there is one); the right not to be retaliated against for taking authorized parenting or medical leave; and the right to be reinstated after the leave ends.

Under the FMLA, most employees have the right, following leave, to be returned to the same position, or to an equivalent position with "equivalent employment benefits, pay, and other terms and conditions of employment." (An employee who is unable or simply fails to return to work at the end of the statutory twelve-week period has no remedy under the FMLA.)

Highly compensated employees–those who are among the highest paid 10 percent of the employees working for a single employer within a 75-mile radius — enjoy only a limited right of reinstatement. For them, an employer can deny reinstatement if it gives notice of its intent do so, and if it can show "substantial and grievous economic injury" to its operations were they to be reinstated. But as a legal secretary, Wertz clearly does not fall within that exception.

The failure to reinstate an employee who is entitled to return to her job gives rise to what is sometimes called an "interference" claim–a label that is based on the employer's interference with the statutory right of reinstatement.

Wertz concedes that she took more than 12 weeks of leave. But she claims that her employer should not be permitted to count it as FMLA leave because she thought she was drawing on other types of leave her employer provided–for vacation and short-term disability. Her employer, she alleges, never properly informed her that her leave would be characterized as FMLA leave and would therefore would be counted against her 12-week allotment.

Although the firm did send Wertz a letter during her first absence stating that she was utilizing FMLA leave, it did so only after she had been gone a month. There was then a one-month period when Wertz returned to work part-time, during which her employer now claims she used up 10 additional days of FMLA leave (though they did not apparently notify her of that designation). And during her postpartum absence, she did receive a letter designating her leave as FMLA leave, but not informing her how much FMLA leave she had remaining.

Whether employers have a duty to notify employees that their leave has been designated as FMLA-leave is an unsettled question. The FMLA itself says nothing about this issue. The Department of Labor, however, has issued regulations that preclude an employer from counting paid or unpaid leave against the FMLA entitlement unless and until it informs the employee that her leave has been designated FMLA leave. Under this rule, the first letter sent to Wertz would only be prospectively valid, and the part-time period would not count against her FMLA allotment.

As long as these regulations are in place, employers who do not adequately designate FMLA leave as such will have to reinstate employees even if they have exceeded their 12 allotted weeks of leave, as long as the employee can claim they believed their leave was taken pursuant to other company policies. Thus, if these regulations are valid, and she is able to prove her allegations that the employer failed to provide her with proper notice, Wertz should likely win her case.

To date, two federal appellate courts, the Eleventh and Eighth Circuits, have held the regulations invalid — in the cases of McGregor v. Autozone, Inc., and Ragsdale v. Wolverine Worldwide Inc., respectively — while one federal appellate court, the Sixth Circuit, has held the regulations valid in Plant v. Morton International, Inc. Other appellate courts have applied the regulation, without expressly considering its validity. Federal district courts have split as well.

Wertz' case, in particular, is made more difficult by the fact that a federal district court in Pennsylvania, where she filed her complaint, has joined those courts that have invalidated the regulations. Ironically, one of the partners of the firm Wertz is suing, Sidney Steinberg, is an expert on the Family and Medical Leave Act and has written commentary on the very issue raised by her case.

Wertz, and other employees in her position, should prevail. Imposing a duty to designate FMLA leave, as the Department of Labor has done, provides at least some protection to employees who are forced to take leaves due to health problems or parenting responsibilities.

But the FMLA should also be expanded, for it is far from a complete solution to the pervasive conflict between work and family that most working women face. The statute represents significant progress in that it affirmatively requires employers to recognize and accommodate the temporary disability associated with pregnancy and the obligations of early parenting. However, it fails in other important respects.

First, most women (and other temporarily-disabled employees) cannot afford to take 12 weeks of unpaid leave. Indeed, one study concluded that as many as 88 percent of eligible employees forego leave provided by the FMLA due to financial constraints. Thus, the rights created by the FMLA are only infrequently exercised.

Second, the FMLA only applies to employers with at least 50 employees. That means a significant number of employees in this country work for employers who are not covered by the act.

As originally introduced in Congress, the FMLA would have applied to much smaller employers. But over the course of eight years of haggling, the FMLA was limited and restricted, until it reached its present, politically palatable form.