The Family and Medical Leave Act (FMLA) – Split decisions and DOL Changes

medical leave


How it was intended, how it changed and how it’s broken

          In 1993, the economy was rolling along and The United States Congress pressed forward and instituted The Family and Medical Leave Act. (FMLA)

FMLA instituted a non-paid right for people to take time off for the employees illness or the illness of a family member. The Act had Specific requirements including employer notification, a required number of employees a company had before the act applied, sections requiring healthcare to continue during leave, and the flexibility for the employer to decide if paid leave (vacation or sick) would be mandated to be used during FMLA or excluded.

This flexibility was allowed so the employer could protect from and employee exhausting FMLA and returning to work to then leave on stored Vacation for the next month.

The second protection for employers was a size limit before FMLA protections came into play. an employer needed to have “who employs 100 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.”

Quite a few States expanded the rights and coverage under State law, and that was expected. (see the Maryland MFLA prior post as an example)

This reason for FMLA was because Congress in an understanding of the economic change of both Single-Family households and Dual working parent homes, and the impact of child or adult care, requiring the population to choose between job security and parenting.

Protections were very limited, they allowed taking non-paid leave, required re-instatement to the job, allowed an employee to bring suit for a violation and if successful to mandate reinstatement and back pay, a penalty of liquidated damages equal to the sum of the amount, and if the job was eliminated, reinstatement to the equivalent job or a management position, or if the employer did not want the employee back, allowed the court to apply front-pay to the employee.

The intent of the law has been challenged and there has been split circuit decisions due to interpretation. The Department of Labor (DOL) who was granted the authority by congress to “promulgate” (make public, publicize, spread, communicate, propagate, disseminate) the application and made the DOL the regulatory body.

In 1995, the DOL produced the first guidelines including protections from waivers. “29 C.F.R. 825.220(d) states, in part, that “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA and required any potential waiver to be approved by the DOL or the court.”

During the years, the DOL tried to, under court decisions, erode the protections by saying, “rights under FMLA does not include “claims,”” and “rights” are prospective and not retrospective.” That it was not intended that retrospective waivers were bared (as in a Severance Package) just prospective. Ignoring the concept to waive “Because the word ‘waive’ has a retrospective connotation.”

In 2009, the DOL amended this section to allow waivers retrospective but not prospective. This was supposedly to clarify the intent due to a split in interpretation by the various Circuits. In doing this they  modified  29 C.F.R. 825.220(d) to what courts prior interpretation said “it would thwart the legislative policy which the law was designed to effectuate”.

The Fourth Circuit originally rejected this in v Progress Energy Inc.,493 F.3d 454 (4th Cir. 2007), but in Whiting v. Johns. Hopkins Hosp., 416 Fed. App’x 312, 314, the Fourth Circuit reversed it’s standing.

The change was made because Fourth Circuit stated “the Court was bound to the Department of Labor Changes. (stated they could not divine the intent of the legislature.)

In review of the original bill, ( ) though Congress did not include all the verbiage in all sections, it was clear the intent was to prevent waivers both prospective and retrospective.

Congress defined

“Employment Benefits” regardless of whether such benefits are provided by a practice or written policy of an employer




It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title.

(The attempt is not prospective)

In the section

TITLE II—LEAVE FOR CIVIL SERVICE EMPLOYEES, Congress defined terms not included directly in the general FMLA section.

‘‘§6385. Prohibition of coercion

‘‘(a) An employee shall not directly or indirectly intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce, any other employee for the purpose of interfering with the exercise of the rights of the employee under this subchapter.

(b) For the purpose of this section, ‘intimidate, threaten, or coerce’ includes promising to confer or conferring any benefit (such as appointment, promotion, or compensation), or taking or threatening to take any reprisal (such as deprivation of appointment, promotion, or compensation).”

(again Severance mandated on the terms of a waiver is a threat deprivation/loss of compensation) (for those who point to “An employee shall not” the severance agreement is provided by an employee, even though it is from the employer. even the legal team and CEO are employee’s, This section also made employees liable for actions as well as employers)



sets the minimum standard


The rights provided to employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.

(The intent when provided as a benefit, written or by policy by action, the rights are a base and shall not be diminished. the waiver does exactly that, it not only diminishes but removes a benefit, by coercive action.)


The Fourth Circuit at this point still follows the DOL’s interpretation,  under the guise of “stated they could not divine the intent of the legislature,” even when presented with intent.  In the end it will again cause a split because the DOL, a part of the Executive Branch, can’t be delegated congressional powers. (legislative) The Congressional intent was for the DOL to be regulatory to “promulgate” (spread, communicate) not to amend or invalidate parts of the law, if there was a split in interpretation by vagueness, then the DOL should have asked Congress to make the changes by amendment or clarification.



Taylor v. Progress Energy

Whiting V John Hopkins Hospital

Congressional Bill 1993


Please note I am not a lawyer, nor is this intended as legal advice.

This is informative research only.if you are involved in a potential

legal action, please consult with a lawyer.

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2 Responses

  1. Alprazolam says:

    “You won’t leave as a manager and then come back working as a well-paid subordinate. Equivalent means that if you left a manager, you return a manager. However, you might leave as manager of ‘Y’ and then come back to be manager of a complementary function of the business,” Grant continues.

    • Admin says:

      That is correct. The idea is you return to a similar position with equal pay.
      Example is if your a billing manager and they replace that but put you in as a customer service manager it’s the equivalent position.

      There are exceptions for the upper level employees “key employees” usually the top 5% pay in the company. This is hard to fight because the “hardship rule” is extreme that it may cause the business to fail.

      The biggest issue is FMLA as it is ruled on now in the 4th circuit removes most protections congress passed based on the executive branches re-interpretation of the rules and how they work.

      As usual with a split in the circuits, either congress will need to clarify or someday the supreme court will have to chime in.
      The issue at conflict is the ability to terminate and use a severance agreement as a shield for protections when the terminated employee is already disadvantaged by a cut, forcing the choice of no severance or fighting for FMLA and one excluding the other.

      In Maryland for the State version Family and Medical Leave Act (MFLA – Maryland Felxible Leave Act) this has been resolved as Severance packages can’t include a waiver for MFLA coverage, if they do it’s void.

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