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An 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 leave under the act, a federal judge with the U.S. District for the Southern District of New York ruled Thursday. Resolving a conflict between Department of Labor notice requirements and the act’s limitations on employer obligations, Judge John G. Koeltl said 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, 99 Civ. 11054, involved a veteran employee who was forced to take 26 weeks of short-term disability leave after his son was paralyzed in an automobile accident. The decision will be published Wednesday. Kevin Fulham’s employer, Marine Midland Bank, did not inform 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 the Family and Medical Leave Act (FMLA), 29 U.S.C. �2601. 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, and 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 leave under the act because he had not worked 1,250 hours for the company in the preceding 12 months. Fulham’s lawsuit in the Southern District charged that he was entitled to 12 weeks off, and that his company’s failure to advise him of his ineligibility for leave under the act ran contrary to the Department of Labor’s regulations on notice. He also alleged that, in any event, he was entitled to the 13 weeks of unpaid leave under the company’s employee benefits program. HSBC, the successor to Marine Midland, moved to dismiss the complaint because, even though Fulham was not notified, he received all the leave he was entitled to when he received short-term disability. Judge Koeltl first found to be “without merit” Fulham’s argument that an employer waives its right to designate short-term disability as leave under the act when it does not make such a designation in advance of the leave. Koeltl 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.” GUIDED BY ‘SARNO’ Koeltl said that “[c]ourts differ on the question of whether the [Department of Labor] regulations, relied upon by the plaintiff, imposing notice and advance designation requirements and preventing retroactive designation are a permissible interpretation of the FMLA.” While the 2nd U.S. Circuit Court of Appeals has yet to address the issue, he said, some guidance can be found in the Sarno v. Douglas Elliman-Gibbons & Ives Inc., 183 F.3d 155 (2d Cir. 1999). In Sarno, Koeltl said, the court ruled that an injured employee would have been unable to return to work even after 12 weeks and, therefore, the lack of notice did not affect his “substantive rights” under the act. With Sarno in mind, Koeltl said he was joining two other circuit courts in finding that regulations “regarding notice and designation are invalid insofar as they purport to require an employer to provide more than 12 weeks of leave time.” “The DOL regulations effectively create an entitlement to an additional 12 weeks of leave whenever an employer fails to notify an employee that the employee is using FMLA leave,” he said. “This is directly inconsistent with the plain language of the FMLA, which makes clear that eligible employees are entitled to a total of 12 weeks of leave.” Ruling the regulations “invalid,” Judge Koeltl went on to grant the bank’s motion to dismiss on Fulham’s claim under the employee benefit program. Thomas Pietrantonio in Port Washington, N.Y., represented Fulham. Martin F. Idzik of Phillips, Lytle, Hitchcock, Blaine & Huber in Jamestown, N.Y., represented HSBC Bank USA.

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