A federal regulation expanding the scope of eligibility under the FMLA is unconstitutional, according to a recent decision from the U.S. District Court for the Eastern District of Virginia. In Wolke v. Dreadnought Marine, Inc., the court considered the conflict between the FMLA, which requires an employee to work for 12 months and 1250 hours before the employee is entitled to leave under the Act, and a federal regulation that provides that an employee with insufficient tenure can still qualify if the employer fails to advise the employee of his eligibility prior to the date the requested leave is to begin. The court stated that the regulation was an impermissible expansion of executive power, as Congress clearly had defined the class of employees it intended to be eligible under the FMLA, and any federal regulation that attempted to broaden the class of eligible employees was impermissible. The court was critical of the potential impact of the regulation, which could allow an employee to work for one day, then inform her employer that she was sick and leaving. If the employer failed at that point to tell her that she was eligible for FMLA leave, under the rule, she would be deemed eligible even though she had worked only one day. The court stated that the employee was clearly not eligible under the FMLA, and granted the employer summary judgment.
Although this decision certainly bodes well for employers, the requirements set forth in the regulations should not be ignored. Employers with fifty or more employees must post notices of employee rights and responsibilities under the FMLA, must include an FMLA policy in existing employee handbooks or otherwise distribute such a policy, and must notify employees of their rights and responsibilities under The Act when a request for FMLA leave has been made.