MANAGING LEAVES OF ABSENCE

A couple of tortured opinions from our nation’s courts, combining with the less than artful way in which Congress sometimes writes the country’s laws, has combined to produce a strange result.

The Family and Medical Leave Act (FMLA) that was passed in the early 90s gives employees the right to take an unpaid leave when they become parent, to take care of an ill family member or if they must miss work because they are sick.  But not all employment laws allow frustrated state employees to seek monetary damages against the States, which are considered to be “sovereign” within the Union.  Whether they can depends on how Congress wrote the law.

Remedies for an FMLA breach fully apply to the states… sometimes.  Because Congress used different language in different parts of the law, state employees have full FMLA rights, including the right to seek damages if they are denied an FMLA leave to take care of a family member; but not if they are denied one to take care of themselves.

There is a lesson there for private employers too.  If an employee seeks a leave, paid or unpaid, should it be granted as a medical leave, an FMLA leave, a disability leave, or must it be granted at all? The answers sit uncomfortably at a complex intersection of state law, federal law and the contractual arrangement between the employer and its employees. Uncertainties make disputes arising from such questions ripe for long litigation, on to appeals; it also makes the proverbial ounce of prevention worth a pound of cure.  The time, effort and occasional expense in making the right decision right away are likely to pay off in spades.