Plaintiff wins appeal on obscure FMLA provision

The Family and Medical Leave Act was passed in 1993, but it remains one of the more recent civil rights laws. It requires employers to give certain employees up to 12 weeks' unpaid leave to deal with family and personal illnesses and medical emergencies. This case looks at an obscure provision in the FMLA.

The case is Oliveria v. Cairo-Durham Central School District, a summary order decided on February 23. Under FMLA, employees who take medical leave of some kind will return to work when the crisis is over. The regulations state that employers have to let employees know how they will return to an equivalent position upon their return to work. In particular, the employer's policies "must clearly explain the employee's restoration rights upon return from leave."

The employer violated that regulation here. Its return to work policy says that employees will return to an equivalent position but they would not continue to accrue service credit during unpaid FMLA leave. "The District therefore had a duty under [the regulation] to inform plaintiff in writing about the policy before she took FMLA leave. Having failed to do so, it violated the notice requirements" under the regulations.

What this violation means for the case is that the jury may find that the employer's failure to properly apprise the plaintiff of the District's policy may "constitute an interference with, restraint, or denial of plaintiff's FMLA rights." This would be significant if plaintiff "would have taken FMLA leave had she been properly notified about the policy regarding restoration of tenure." In other words, the employer's failure to advise plaintiff about the consequences of unpaid FMLA leave could constitute an "interference" under the law. More specifically, this is how the district court characterized plaintiff's interference claim:

Plaintiff asserts that defendants interfered with her FMLA rights by: (1) failing to restore her to an "equivalent position", deducting twenty-three days from her seniority and rendering her status "inferior" to the status she held prior to taking leave, in violation of 29 U.S.C. 2614(3)(B) and 29 C.F.R. § 825.215(a); (2) failing to inform her "in writing or otherwise, that upon her return from FMLA leave, her seniority status would be reduced by the amount of unpaid FMLA-protected leave she took"; (3) "deducting the time that plaintiff was out on unpaid FMLA leave from [her] seniority status" and using it as a negative factor resulting her in her termination; and (4) "discourag[ing] employees from exercising their FMLA rights" by deducting the leave from their seniority status.

This is a summary order, so we don't know all the details, but since the Court of Appeals (Cabranes, Pooler and Chin) is reversing summary judgment, this decisions means the FMLA interference case goes to trial.