SECOND CIRCUIT STRIKES DOWN FMLA REGULATION ON LATE EMPLOYER DETERMINATION OF ELIGIBILITY
by Bruce M. Luchansky

The United States Court of Appeals for the Second Circuit has joined a growing number of federal courts that have rejected certain FMLA Regulations issued by the Department of Labor. These decisions are a breath of fresh air for employers.

In Woodford v. Community Action of Greene County, Inc.,(2d Cir. 2001), the Second Circuit held that an FMLA rule issued by the DOL went too far, and the Court struck it down. The rule stated that an employer who approves a request for FMLA leave cannot later deny the leave, even if the employer subsequently determines that the employee was not eligible for leave under the FMLA. For example, the FMLA statute provides that to be eligible, an employee must have worked for the employer for at least 1,250 hours during the past 12 months. Under the DOL regulations, however, an employer who mistakenly approves FMLA leave for an employee who only had worked 850 hours during the past year may not subsequently correct its error and deny the leave. Once the leave is approved, there is no turning back.

Fortunately, the Second Circuit disagreed with the DOL's position. In enacting the FMLA, the Court explained, Congress clearly stated which employees would be entitled to leave -- those who had worked for the employer for a total of at least 12 months, and for at least 1,250 hours during the preceding 12 months. The Court held that expanding coverage to employees who do not meet those criteria simply because of the employer's late notice of ineligibility alters the clear scope of the statute's coverage -- something that is beyond the DOL's authority.

In rejecting this regulation, the Second Circuit joins many other federal courts that have reached the same conclusion, including two other Courts of Appeal (the Seventh and the Eleventh Circuits), and four District Courts, including the United States District Court for the District of Maryland. This decision does not provide employers with a license to miscalculate employees' eligibility for FMLA coverage. It does, however, help combat the DOL's attempt to expand the FMLA through administrative rulemaking, and encourages the DOL to do what it is supposed to do -- interpret the FMLA statute according to its terms, not according to DOL's wish list.

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