The Family and Medical Leave Act: Background and U.S. Supreme Court Casts

CRS Report for Congress
The Family and Medical Leave Act:
Background and U.S. Supreme Court Cases
Jon O. Shimabukuro
Legislative Attorney
American Law Division
Summary
This report provides background on the eligibility and notification requirements for
taking leave under the Family and Medical Leave Act (“FMLA”). The FMLA
guarantees eligible employees 12 workweeks of unpaid leave for the birth or adoption
of a child; for the placement of a foster child; for the care of a spouse, child, or parent
suffering from a serious health condition; or for a serious health condition that makes
the employee unable to perform the functions of the employee’s position. Since the
FMLA’s enactment in 1993, the U.S. Supreme Court has considered two cases involving
the statute. Ragsdale v. Wolverine World Wide, Inc. and Nevada Department of Human
Resources v. Hibbs are discussed in this report. The report will be updated in response
to the FMLA’s amendment and relevant Supreme Court cases.
The Family and Medical Leave Act (“FMLA”) guarantees eligible employees 12
workweeks of unpaid leave for certain specified reasons.1 Enacted in 1993, the FMLA
seeks “to balance the demands of the workplace with the needs of families, to promote
the stability and economic security of families, and to promote national interests in
preserving family integrity.”2 This report provides background on the eligibility and
notification requirements for taking leave under the FMLA, and discusses U.S. Supreme
Court cases that have considered the validity of FMLA regulations and the availability of
money damages under the FMLA for state employees.
Background
Section 102(a)(1) of the FMLA provides that an eligible employee shall be entitled
to a total of 12 workweeks of leave during any 12-month period for one or more of the
following reasons:


1 29 U.S.C. §§ 2601-2654.
2 29 U.S.C. § 2601(b)(1), (b)(2).
Congressional Research Service ˜ The Library of Congress
(1) Because of the birth of a son or daughter of the employee and in order to
care for such son or daughter;
(2) Because of the placement of a son or daughter with the employee for
adoption or foster care;
(3) In order to care for the spouse, or a son, daughter, or parent, of the
employee, if such spouse, son, daughter, or parent has a serious health
condition;
(4) Because of a serious health condition that makes the employee unable to
perform the functions of the position of such employee.3
The FMLA defines an “eligible employee” as one who has been employed for at least 12
months by the employer from whom leave is requested, and who has been employed for
at least 1,250 hours of service with such employer during the previous 12-month period.4
The FMLA applies only to employers engaged in commerce or in an industry affecting
commerce who have at least 50 employees who are employed for each working day
during each of 20 or more calendar workweeks in the current or preceding calendar year.5
Most employees who take leave under the FMLA shall be entitled, upon their return,
to be restored to their positions of employment or to equivalent positions with equivalent
employment benefits, pay, and other terms and conditions of employment.6 During the
leave period, an employer shall maintain the employee’s coverage in any group health
plan at the level and under the same conditions that would have existed had the employee
continued in employment.7
Certain highly compensated employees may be denied restoration to their prior
positions under specified circumstances. A salaried employee who is among the highest
paid 10 percent of employees employed within 75 miles of the facility at which he is
employed may be denied restoration to his prior position when the denial is necessary to
prevent “substantial and grievous economic injury” to the employer’s operations, the
employer notifies the employee of its intent not to restore the employee to his prior
position, and, in a case in which leave has commenced, the employee elects not to return
after receiving such notice.8
When the necessity for leave is foreseeable because of a serious health condition and
a planned medical treatment, the FMLA requires the employee to make a reasonable effort


3 29 U.S.C. § 2612(a)(1).
4 29 U.S.C. § 2611(2). The term “eligible employee” does not include most federal employees.
Federal employees are covered generally under the Federal Employees Family Friendly Leave
Act (“FEFFLA”). See also 5 U.S.C. § 6307(d) (permitting the use of sick leave to care for a
family member having an illness or injury, and to make arrangements for or to attend the funeral
of a family member).
5 29 U.S.C. § 2611(4)(I). See also 29 U.S.C. §2611(2)(B)(ii) (Employers who employ 50 or more
employees within a 75-mile radius of an employee’s worksite are subject to the FMLA even if
they may have fewer than 50 employees at a single worksite.).
6 29 U.S.C. § 2614(a)(1).
7 29 U.S.C. § 2614(c)(1).
8 29 U.S.C. § 2614(b)(1), (b)(2).
to schedule the treatment so as not to unduly disrupt the operations of the employer.9 In
addition, the employee is required to notify the employer of his intention to take leave not
less than 30 days before the date the leave is to begin.10 If the date of the treatment
requires leave to begin in less than 30 days, the employee shall provide such notice as is
practicable.11 If an employee fails to provide 30 days notice for foreseeable leave, with
no reasonable excuse for the delay, the employer may delay the taking of leave until at
least 30 days after the date the employee provides notice to the employer.12 An employer
may also delay leave if an employee fails to provide medical certification to substantiate
the need for leave because of a serious health condition.13
While the FMLA guarantees leave for eligible employees, it also permits an
employer to substitute an employee’s accrued paid vacation leave, personal leave, or
family leave for the leave provided under the statute for the birth or adoption of a child,
or for the care of a child, spouse, or parent who has a serious health condition.14 In
addition, an employer may substitute an employee’s accrued paid vacation leave, personal
leave, or medical or sick leave for the leave provided under the FMLA for the employee’s
own serious health condition.15 An employer who substitutes vacation leave, personal
leave, family leave, or medical or sick leave for the leave provided under the statute must
tell the employee that the paid leave is being designated as FMLA leave.16
Section 107(a)(2) of the FMLA provides a private right of action for employees who
are denied their rights under the statute.17 The private right of action may be limited by
the filing of a complaint by the Secretary of Labor on behalf of the employee.18
The FMLA and the U.S. Supreme Court
The Supreme Court has considered two cases involving the FMLA since the statute’s
enactment. In Ragsdale v. Wolverine World Wide, Inc., the Court considered the validity
of a FMLA regulation which provided that if an employee takes paid or unpaid leave and
the employer does not designate the leave as FMLA leave, the leave taken would not
count against the employee’s FMLA entitlement.19 Wolverine World Wide maintained


9 29 U.S.C. § 2612(e)(2)(A).
10 29 U.S.C. § 2612(e)(2)(B).
11 Id.
12 29 C.F.R. § 825.304(b).
13 29 C.F.R. § 825.312(b).
14 29 U.S.C. § 2612(d)(A).
15 29 U.S.C. § 2612(d)(B).
16 29 C.F.R. § 825.208.
17 29 U.S.C. § 2617(a)(2). See also 29 U.S.C. § 2615.
18 29 U.S.C. § 2617(a)(4).
19 535 U.S. 81 (2002). 29 C.F.R. § 825.700(a) (1991) provided, in relevant part: “If an employee
takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the
(continued...)
a leave plan that permitted its employees up to seven months of unpaid sick leave.
Ragsdale was terminated after her request for additional leave beyond the seven-month
allowance was exhausted, and she was unable to return to work. Because Wolverine
World Wide never informed Ragsdale that 12 weeks of leave under the leave plan would
count as her FMLA leave, Ragsdale sought relief based on the FMLA regulation.
While the Court recognized that the Secretary of Labor’s judgment in issuing the
regulation must be given considerable weight, it also acknowledged that the regulation
could not stand if it was “‘arbitrary, capricious, or manifestly contrary to the statute.’”20
In this case, the Court maintained that the regulation was invalid because it altered the
FMLA’s cause of action in a fundamental way: “[The regulation] transformed the
company’s failure to give notice – along with its refusal to grant her more . . . leave – into
an actionable violation . . .”21
The Court noted that to prevail under FMLA’s enforcement provisions, an employee
must prove, as a threshold matter, that the employer interfered with, restrained, or denied
the exercise of FMLA rights. Moreover, the Court observed that even when an employer
has engaged in such misconduct, the FMLA does not provide relief unless the employee
has been prejudiced by the violation.22 The FMLA regulation at issue established an
“irrebuttable presumption” that an employee’s exercise of FMLA rights was impaired
without any empirical or logical basis for the presumption.23 Although Wolverine World
Wide had granted Ragsdale more than 12 weeks of leave, the regulation, if upheld, would
permit her to obtain reinstatement and the other relief provided under the statute. By
granting such relief “absent a showing of consequential harm, the regulation worked an
end run around important limitations of the statute’s remedial scheme.”24 The Court
contended that the regulation “relieves employees of the burden of proving any real
impairment of their rights and resulting prejudice.”25
In Nevada Department of Human Resources v. Hibbs, the Court concluded that state
employees could recover money damages from a state in federal court for violation of
section 102(a)(1)(C) of the FMLA.26 Hibbs was terminated after he failed to return to


19 (...continued)
leave taken does not count against an employee’s FMLA entitlement.”
20 Id. at 86 (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 844 (1984)).


21 Ragsdale, 535 U.S. at 91.
22 Ragsdale, 535 U.S. at 89.
23 Ragsdale, 535 U.S. at 90.
24 Ragsdale, 535 U.S. at 91.
25 Ragsdale, 535 U.S. at 90.
26 538 U.S. 721 (2003). Section 102(a)(1)(C) of the FMLA entitles an eligible employee to take

12 workweeks of leave during any 12-month period to care for such employee’s child, spouse,


or parent with a serious health condition. For additional information about Nevada Department
of Human Resources v. Hibbs, see CRS Report RL31604, Suits Against State Employers Under
the Family and Medical Leave Act: Analysis of Nevada Department of Human Resources v.
(continued...)
work with the Nevada Department of Human Resources’ Welfare Division after being
told that he had exhausted his FMLA leave. The Court considered the case to resolve a
split among the U.S. Courts of Appeals on the question of whether an individual may sue
a state for money damages in federal court for violation of section 102(a)(1)(C).
Although the Constitution does not provide generally for federal jurisdiction over
suits against nonconsenting states, it is understood that Congress may abrogate a state’s
immunity in federal court if it makes its intention “unmistakably clear in the language of
the statute and acts pursuant to a valid exercise of its power under section 5 of the
Fourteenth Amendment.”27 Because the language of the FMLA provides clearly for an
employee to seek relief in any federal or state court of competent jurisdiction against a
public agency, the Court focused on whether Congress acted within its constitutional
authority when it sought to abrogate the states’ immunity.28
Section 5 of the Fourteenth Amendment grants Congress the power to enforce the
substantive guarantees of section 1 of the Fourteenth Amendment, including equal
protection of the laws, by enacting “appropriate legislation.”29 In the exercise of its
authority under section 5, Congress may enact “prophylactic” legislation that proscribes
facially constitutional conduct as a way of preventing and deterring unconstitutional
conduct.30 However, to be valid, such legislation must exhibit “‘congruence and
proportionality between the injury to be prevented or remedied and the means adopted to
that end.’”31
The FMLA operates to protect the right to be free from gender-based discrimination
in the workplace.32 A review of the FMLA’s legislative record by the Court indicated that
stereotype-based beliefs about the allocation of family duties still existed at the time of
the measure’s enactment. Employers continued to rely on those beliefs to establish


26 (...continued)
Hibbs.
27 Hibbs, 538 U.S. at 726. See also Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356
(2001); Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991). In enacting the FMLA,
Congress relied on its power under section 5 of the Fourteenth Amendment, as well as its
authority under the Commerce Clause of Article I. However, Congress may not abrogate the
states’ sovereign immunity pursuant to its Article I power over commerce.
28 See 29 U.S.C. § 2611(4)(A)(iii) (“The term ‘employer’ – includes any ‘public agency’, as
defined in section 203(x) of this title.”). 29 U.S.C. § 203(x) defines the term “public employer”
to mean “the Government of the United States; the government of a State or political subdivision
thereof; any agency of the United States (including the United States Postal Service and Postal
Rate Commission), a State, or a political subdivision of a State; or any interstate governmental
agency.”
29 U.S. Const. amend. XIV, § 5.
30 Hibbs, 538 U.S. at 727-28.
31 Hibbs, 538 U.S. at 728 (quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997)).
32 See 29 U.S.C. § 2601(b)(4) (explaining that one of the purposes of the FMLA is to minimize
the potential for employment discrimination on the basis of sex by ensuring that leave is available
for eligible medical reasons and for compelling family reasons on a gender-neutral basis).
discriminatory leave policies.33 Moreover, Congress recognized that the state leave
policies that existed prior to the FMLA’s enactment were limited and would do little to
combat stereotypes about the roles of male and female employees.34 For example, prior
to the FMLA’s enactment, seven states had childcare leave provisions that applied only
to women.35 Given these findings, the Court concluded that Congress was justified in
enacting the FMLA as remedial legislation: “In sum, the States’ record of unconstitutional
participation in, and fostering of, gender-based discrimination in the administration of
leave benefits is weighty enough to justify the enactment of prophylactic [section] 5
legi slation.”36
Focusing specifically on section 102(a)(1)(C), the Court maintained that the
provision is congruent and proportional to the targeted violation: “the FMLA is narrowly
targeted at the fault line between work and family – precisely where sex-based
overgeneralization has been and remains strongest – and affects only one aspect of the
employment relationship.”37 The Court also cited the FMLA’s limitations as evidence of
its being congruent and proportional. For example, the statute applies only to employees
who meet specified tenure requirements. Employees must give advance notice of
foreseeable leave. 12 weeks, rather than a longer period, was selected as the appropriate
leave floor. These and other limitations led the Court to find that section 102(a)(1) is
“congruent and proportional to its remedial object, and can ‘be understood as responsive
to, or designed to prevent, unconstitutional behavior.’”38
Because the FMLA was found to be a valid exercise of Congress’s power under
section 5 of the Fourteenth Amendment, and because the statute provides clearly for relief
against a public agency, including the government of a state or political subdivision, the
Court concluded that money damages are available to state employees when the state fails
to comply with the FMLA.


33 Hibbs, 538 U.S. at 730.
34 Hibbs, 538 U.S. at 733-34.
35 Hibbs, 538 U.S. at 733.
36 Hibbs, 538 U.S. at 735.
37 Hibbs, 538 U.S. at 738.
38 Hibbs, 538 U.S. at 739-40 (quoting City of Boerne v. Flores, 521 U.S. 507, 532 (1997)).