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September 10, 2001
Clarity Not Required Under FMLA Ruling
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employer's failure to clarify that short-term disability leave counts under the Family and Medical Leave Act does not entitle an employee to a fresh 12 weeks of FMLA leave, a federal judge in New York ruled Thursday.

Judge John G. Koeltl of the U.S. District for the Southern District of New York resolved a conflict between Department of Labor notice requirements and the act's limitations on employer obligations, according to the New York Law Journal.

Koeltl decided that Congress did not intend to allow an employee to take 12 additional weeks of unpaid leave after spending six months on disability.

The case, Fulham v. HSBC Bank USA, involved a veteran employee who had been forced to take 26 weeks of short-term disability leave after his son was paralyzed in an automobile accident.

The employer, Marine Midland Bank, did not inform the employee, Kevin Fulham, that the short-term leave he took from August 1997 to February 1998 counted toward the 12 weeks he was entitled to stay away from work under FMLA, the Journal reported.

A month before his scheduled return to work, Fulham was told by a company employee that he might qualify for unpaid family leave of up to 13 weeks under the company's employee benefits program and remain an active employee, or leave the company and accept long-term disability benefits.

In February 1998, Fulham asked to be placed on unpaid leave, the Journal reported. He also submitted an application for long-term disability. Although he was initially placed on unpaid leave, Fulham was later informed that he was ineligible for it under FMLA because he had not worked 1,250 hours for the company in the preceding 12 months.

Fulham charged in his suit that he was entitled to 12 weeks off, and that his company's failure to advise him of his ineligibility for leave ran contrary to the Department of Labor's regulations regarding notice.

He also alleged that, in any event, he was entitled to the 13 weeks of unpaid leave under the company's own employee benefits program.

HSBC, the successor to Marine Midland, moved to dismiss the complaint. It argued that even though Fulham had not been notified, he received all the leave he was entitled to when he received short-term disability.

Koeltl found no merit in Fulham's argument that an employer waives its right to designate short-term disability as leave under FMLA when it does not make such a designation in advance of the leave.

He then addressed the Department of Labor's implementation of regulations under the act, which require an employer to "designate" short-term disability leave as FMLA leave in advance.

"The defendant argues that the regulations impermissibly expand the rights conferred on employees under the FMLA by extending the 12-week leave period required by the FMLA," he said.

He said that 29 U.S.C. §825.208 commands businesses to designate FMLA leave and it deems that failure to promptly notify an employee "preserves the employee's FMLA leave entitlement."

To view the New York Law Journal article, click here.
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