Under the Family and Medical Leave Act of 1993 (FMLA), covered employers must grant an eligible employee's request for up to twelve weeks of unpaid leave to care for a new baby or an ill family member, or to accommodate the employee's own serious health condition. The statute prohibits employers from interfering with, restraining, or denying an employee's right to FMLA leave. Neither the statute itself nor its regulations directly address the practice of involuntary leave, a term that has been used to describe instances where an employer designates the leave of a qualifying employee as FMLA leave without an employee request or against the employee's wishes and instances where an employer places a nonqualifying employee on FMLA leave. The few federal courts that have examined this issue have failed to make this distinction and have interpreted the statute's silence to permit employers to put employees on involuntary FMLA leave in both instances. This Comment examines the text of the FMLA, its implementing regulations, and its legislative history to ascertain both Congress's intent and the Department of Labor's interpretation regarding involuntary leave. This Comment concludes that employers who put non-qualifying employees on involuntary FMLA leave violate the FMLA's prohibition on employer interference with employees' FMLA rights.
Megan E. Blomquist,
Notes and Comments,
A Shield, Not a Sword: Involuntary Leave under the Family and Medical Leave Act,
76 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol76/iss2/6