Federal Courts Slicing Family Leave Law

Federal appeals courts have ruled that state workers are not covered by the Family and Medical Leave Act, leaving government employees in 10 states without its benefits. Next on the legal horizon: No federal protection for disabled state workers.

In a disturbing trend that undermines the Family and Medical Leave Act, three federal appeals courts have ruled that state government employees on leave because of serious medical conditions may not sue the state in federal court if they are fired. Government employees in 10 states are affected.

The courts ruled that the federal court redress provisions of the Family and Medical Leave Act were unconstitutional because Congress had exceeded its authority in writing the legislation. The courts deferred to the states.

Women's advocates called the various rulings deeply troubling and said they could be very harmful economically for the large number of working parents who are state employees. The latest decision on July 17 is now the law in Kentucky, Michigan, Ohio and Tennessee, the states under the jurisdiction of the Sixth Circuit Court of Appeals

Two similar rulings by the federal appeals courts have also prohibited state employees from suing the states in federal court under the Family and Medical Leave Act if they are fired.

The states where the leave protections have been sharply restricted are Alabama, Georgia and Florida in the Eleventh Circuit Court of Appeals and Connecticut, New York and Vermont in the Second Circuit. These decisions appear to in line with the current reigning philosophy in federal courts, known as federalism, that emphasizes the autonomy of the individual states.

The recent case in the Sixth Circuit, Sims v. The University of Cincinnati, involved the firing of Naomi Sims, a medical secretary at the university. She was granted unpaid leave in early January 1994 because of a serious medical condition. She was later dismissed after being charged with violating a collective bargaining agreement that gave the university the right to terminate any employee who accepted other employment without approval while on authorized leave. She was observed catering a wedding reception.

“The ruling is a disaster for working women. The Family and Medical Leave Act of 1993 was designed to provide emergency leave for all employees,” said Catherine Ruckelshause, litigation director for the National Employment Law Project. “The decision will have an impact on a huge number of state employees,” she added.

The federal family and medical leave law entitles eligible employees to take an unpaid leaves for a total of 12 weeks per calendar year because of childbirth or adoption of a child, a serious medical condition or the need to care for a seriously ill family member. Employees who return from such leave are entitled to the same position or a position with comparable pay, benefits, hours and responsibility and are protected from retaliation from the employer.

Peter J. Smith, a Justice Department lawyer who argued the case on behalf of Sims, said that the appeals court chose to focus on the issue of states' sovereign immunity, a theory of law that once protected kings from lawsuits from their subjects-rather than ruling on the merits of Sims'claim and determining whether the state violated her rights by terminating her.

This focus on the technical constitutional issue of states' sovereign immunity overriding federal legislation follows the direction the Supreme Court has taken in recent decisions, says Pauline Kim, a law professor at Washington University in St. Louis.

In January, the Supreme Court ruled in an age discrimination case involving a state employee that Congress lacked authority to make the states, as employers, liable to be sued.

Kim said the Supreme Court would hear a similar case this fall to determine whether state employees may sue the state in Federal court under the Americans with Disabilities Act.

Elana Tyrangiel, policy counsel for the National Partnership for Women and Families, called the Sims decision “very troubling.”

“State employees deserve as much protection under the Family and Medical Leave Act as any other employees. When Congress drafted the law, they intended for state employees to have it,” she said.

Because the ruling only bars individuals from filing suit against the state, Smith said the U.S government could file suit on behalf of terminated employees but “doesn't have the resources to pursue suits for a large number of state employees.”

Smith added that the Justice Department is now considering whether or not to take further action in the Sims case. It could appeal to the Supreme Court, which has the discretionary power to turn it down, or the Justice Department could request that the entire Sixth Circuit Court review the decision.

Tyrangiel added that the struggle over Family and Medical Leave Act is far from over.

“States still have to comply with the law or risk being sued by the federal government. This does not spell the downfall of FMLA,” Tyrangiel said.

Ellen Birkett Morris is a free-lance writer based in Louisville, KY. She specializes in business, women in philanthropy, health and the arts.