Employers must still provide FMLA notice.

Byline: On the Job by Bureau of Labor & Industries For The Register-Guard

Q: I just read that the U.S. Supreme Court issued a decision about the Family and Medical Leave Act. What does the case mean for employers?

A: The case is Ragsdale vs. Wolverine World Wide, Inc., decided by the Supreme Court on March 19. This case marks the first time that the Supreme Court has weighed in on the federal Family and Medical Leave Act of 1993, or FMLA, and the court was sharply divided (5-4).

At issue was a regulation issued by the U.S. Department of Labor (29 CFR 825.700(a)) that sets a penalty for an employer's failure to timely designate an employee's FMLA leave.

The court determined that the Labor Department had exceeded its authority in enacting this regulation and the court declared it invalid.

FMLA applies to employers who have 50 or more employees working anywhere in the United States and allows protected time off for eligible employees who have a serious health condition, have a family member with a serious health condition, or have a newborn, newly adopted, or newly placed foster child.

When an employee gives notice of a qualifying family leave, the employer normally has two business days, absent extenuating circumstances, to provide a written designation notice to the employee.

The written notice must advise the employee of rights in connection with FMLA, including whether the employee is eligible for leave, whether the leave will count against the 12-week FMLA entitlement, whether the employee must provide medical certification, whether the employee must use paid sick leave or vacation during the FMLA period, how often the employee must check in with the employer, and whether the employer will require a fitness for duty certificate upon the employee's return. (Employers can download a prototype notice, Form WH-381, at the Labor Department Web site, www.dol.gov.)

The FMLA rule in question provided that employers who failed to designate the leave as FMLA could not retroactively count the leave against the employee's 12-week entitlement.

The result was that an employee would be fully protected during the leave, but would still have 12 weeks "in the bank." The FMLA leave could continue indefinitely until the employer "started the clock" by issuing the proper designation notice.

It's that penalty - the automatic continuation of FMLA leave - that the Supreme Court declared invalid.

Essentially, the court said that as long as the employee's absence is otherwise FMLA-compliant, the employer should be able to count the time as FMLA leave, and the employee isn't entitled to more than 12 weeks of protected leave in a single 12-month period.

Note that this decision doesn't change an employer's obligation to promptly designate FMLA leave in writing. It's just that the penalty probably won't be as steep for employers who inadvertently fail to issue a designation.

Courts will now assess case-by-case whether the failure to issue the notice harmed the employee.

For instance, did the employee still have his or her group health insurance continued as required under FMLA? Was the employee improperly disciplined for the FMLA-qualifying absence? Did the employee still have job protection and reinstatement rights as required by the law?

Oregon employers with 25 or more employees in the state must also follow the Oregon Family Leave Act, or OFLA. Though OFLA does not require the same type of formal written designation as FMLA, it's still wise to advise eligible employees that their leave will be counted against the OFLA 12-week entitlement.

Unlike FMLA, the Oregon law does allow employees more than 12 weeks of protected leave in some situations. Under OFLA, a woman who takes pregnancy disability leave may also use 12 additional weeks of OFLA leave in the same 12-month leave year.

And any employee who uses a full 12 weeks of parental leave (bonding with a new child) may take up to 12 more weeks that year for sick child incidents involving the nonserious health condition of a child.

Additional information on OFLA is available at www.boli.state.or.us/civil/oflafacts.html on the BOLI website.

On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries. The column answers questions about employment law. To contact BOLI, call [phone], or write to BOLI, 800 N.E. Oregon St. #32, Portland, OR 97232.