Municipal Immunity under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) was enacted, in part, “to balance the demands of the workplace with the needs of families…in a manner that accommodates the legitimate interests of employers…” 29 USC 2601(b). The Act entitles eligible employees to take leave:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. 29 USC 2612(a)(1).

Sections (A)-(C) are generally referred to as “family-care provisions” and section (D) is referred to as a “self-care provision.” The FMLA applies to both private employers and municipalities. 29 USC 2611(4)(A)(iii). However, the Act’s applicability to municipalities is limited.

The Eleventh Amendment of the United States Constitution provides sovereign immunity to the States and any political subdivisions thereof from suits for damages, unless the State chooses to waive said immunity. U.S. Const. Amend. XI. Additionally, Congress may abrogate the States’ immunity from suit pursuant to its powers under § 5 of the Fourteenth Amendment. See e.g. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Congress’ intention to abrogate the States’ sovereign immunity must be “unmistakably clear in the language of the statute.” Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003)

In Hibbs, the Supreme Court concluded that Congress clearly intended to abrogate the States’ sovereign immunity in enacting the family-care provisions of the FMLA. Specifically, the Court noted that the family-care provisions of the FMLA were aimed at providing a remedy for a history of gender-based discrimination in the administration of leave benefits. However, in Coleman v. Counter of Appeals of Maryland, 132 S.Ct. 1327, 182 L.Ed.2d 866 (2012), the Court held that Congress did not validly abrogate state sovereign immunity in enacting the FMLA’s self-care provision.

As a result, the defense of sovereign immunity is alive and well for damage claims against municipal employers for alleged violations of FMLA’s self-care provision. Id. at 1328. However, an employee may recover for prospective relief (i.e., reinstatements) where the employee establishes an ongoing violation of federal law. See Diaz v. Michigan Dept. of Corrections, 703 F.3d 956, 961-62 (6th Cir. 2013).

Matt Cross is an attorney in our Traverse City office where he focuses his practice on insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.