February 13, 2002 
Human Resource Directors To: 
Joyce Villa From: 
Employee Relations Update Subject: 
Topics Covered: 
Family & Medical Leave Act Ruling 
Disaster Communications 
Military Leave Update 
Family & Medical Leave Act 
A controversial regulation under the Family & Medical Leave Act 
(FMLA) has been struck down by the U.S. Court of Appeals for the 2nd Circuit. 
The regulation, at 29 C.F.R. § 825.110(d), provides that when an employee 
requests leave under the FMLA, the employer must advise the employee whether 
the employee has worked sufficient hours to be eligible for coverage under the 
Act. The regulation further provides that even where the employer thereafter 
finds that the employee did not have sufficient hours to be eligible for coverage, 
the employer may not subsequently challenge the employee's eligibility. Despite 
this decision, some exposure remains and campuses should take care to accurately 
notify employees of FMLA eligibility. 
In the case before the court, the employer authorized an employee's leave 
even though she had worked only about 800 hours over the previous year. On 
subsequent review, the employer concluded that her timesheets did not reflect the 
1,250 hours needed and notified her that her leave was not covered by the FMLA. 
In reaching its conclusion that the employee was not covered by the FMLA, the 
Court relied on the plain language of the statute, which defined an "eligible 
employee" as someone who must have "been employed . . . for at least 1,250 
hours of service with such employer during the previous 12 month period."
The court held that the regulation was an impermissible attempt to expand 
eligibility which had been established by Congress. The 2nd Circuit determination 
applies to New York State, Connecticut and Vermont and is consistent with 
holdings in both the 7th and 11th Circuit Courts of Appeals. The only contrary 
holding was reached by an Ohio district court. 
It is important to note that despite finding the regulation overbroad, the 
Court emphasized the employer's obligation to give timely notice of eligibility. 
The Court summarized the legislative history of the FMLA, which contained 
Congressional discussion regarding an employee who initially received her 
employer's approval for 3 months' leave after childbirth. Seven months into her 
pregnancy she was informed that she could not take maternity leave because she 
was not covered by the FMLA. Accordingly, she was forced to quit her job. The 
Court recognized the possibility that a regulation could be written which would 
prevent an employer, even inadvertently, from misleading an employee 
concerning the employee's entitlement to leave. This could apply if the employee 
had reasonably relied on the employer's mistaken determination that the employee 
was eligible and was harmed as a result. 
In concluding its opinion, the Court found that even in the absence of a 
formal regulation, the doctrine of equitable estoppel may apply where an 
employer who has initially provided notice of eligibility for leave later seeks to 
challenge that eligibility. Thus, employers should be on notice that in the future, 
employees who rely, to their detriment, upon the assurance of their employer that 
they qualify for leave under the FMLA, may have recourse to the doctrine of 
equitable estoppel. This is so even without an enforceable regulation protecting 
their right to rely upon the employer's notice of eligibility. To succeed on this 
basis, an employee would need to demonstrate not only that he or she had 
received an erroneous notice of eligibility, but also that he or she had then relied 
on that notice and would be injured if the employer were able to disavow 
coverage. 
Disaster Communications 
Based on our experience in notifying campuses of closings and extensions 
of closings announced by the Governor following the September 11th attack, and 
more recently due to the snow emergency in Buffalo, we are suggesting 
improvement in our emergency communications capability. When announcing 
the closing of State buildings, the Governor's Office works through the 
Governor's Office of Employee Relations. That agency has liaison responsibility 
with each State agency, and so is in a position, on short notice, to contact all 
agencies in the State in the event notice of an emergency closing needs to be 
communicated. GOER normally works by phone tree. That is, each 
administrator in the office is assigned to contact several agencies with up-to-date 
information on directed closings. When we get such a call in the 
2
SUNY System Office of Employee Relations, we form our own phone trees to 
call the affected campuses as quickly as possible. We also use e-mail and fax but, 
because of the nature of some of these emergencies, the goal is to talk with a 
person, and not simply leave a message. 
It has sometimes been difficult to contact a campus representative, 
particularly when an emergency closing is being extended. Often, the initial 
announcement of a closing occurs when the campus is still partially staffed. If, 
however, a closing is extended for an additional day, on occasion there is no one 
available, not even in the Campus Police office, to get the word out. 
Your thoughts and recommendations with respect to improving our ability 
to communicate during these difficult times would be greatly appreciated. We are 
considering asking each of you provide us with a home number of a responsible 
person on campus, so that in the event an emergency occurs and no one can be 
reached through the normal channels, we at least have another option to try. 
Another possibility might be a power plant number, since those operations are 
typically staffed even during severe emergencies. Please fax or e-mail your 
recommendations to me at: (518) 443-5431 (fax), or villajy@sysadm.suny.edu 
(e-mail). 
Military Leave Update 
If you have questions regarding the rights of employees who have been 
called to military duty, a helpful resource is the Office of Employer Support for 
the Guard and Reserve, a part of the U.S. Department of Defense. They have a 
web site at: www.ESGR.org with helpful information and checklists and a phone 
number at 1-800-336-4590. 
The Department of Labor, Division of Veterans Employment Training 
(VETS), is responsible for initial assessment of employment disputes under the 
Uniformed Services Employment and Reemployment Act (USERRA) and serves 
as a gatekeeper for further enforcement by the U.S. Attorney's Office in the 
appropriate jurisdiction. Their strong preference is to mediate any disagreement 
between employer and service personnel with a view to preserving the long term 
employment relationship. Their helpful web site at: www.dol.gov/dol/vets/ and 
can also be accessed through the U.S. Department of Labor's web site at: 
www.dol.gov. 
The call up of reservists has now extended to the point where employees 
are making use of the supplemental leave with pay. That leave provides 30 days 
of leave for call ups connected with the September 11 attack. 
3
In case of a question on whether the service is eligible for the extra 30 
days of coverage, the reservist should share with you a copy of his or her orders, 
which may provide information to make the determination. If it is not possible to 
tell from the orders, please call this office so that contact can be made with the 
military to ascertain whether the particular call up is connected with the attack. 
c: Chancellor King 
Mr. Miller 
Presidents, State-operated Campuses 
Vice Presidents for Administration 
4
ERUP11202.doc