State Employees Cannot Sue State Over FMLA Leave to Care for Self

By Rudman Winchell Attorney

On Tuesday, March 20, 2012, the United States Supreme Court issued its decision in Coleman v. Court of Appeals of MD, No. 10-1016, affirming a Fourth Circuit decision holding that a State retains its immunity with respect to the federal Family & Medical Leave Act (FMLA) related to sick leave for an employee.The federal FMLA entitles an employee to take up to 12 work weeks of unpaid leave per year for a number of different qualifying reasons including: 1) caring for a spouse, son, daughter, or parent with a serious medical condition; and 2) caring for an employee’s own serious health condition when the condition interferes with the employee’s ability to perform at work.

In Coleman, an employee filed suit alleging that his employer, the Maryland Court of Appeals, violated the FMLA when it denied him leave to care for his own serious health condition. The Federal District Court dismissed the claim based on sovereign immunity and Fourth Circuit affirmed.

The U.S. Supreme Court held that while Congress may abrogate a State’s immunity under the Fourteenth Amendment, to do so a statute must be “unmistakably clear” and it must remedy or prevent substantive violations of the Fourteenth Amendment. In Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003), the U.S. Supreme Court previously held that family-leave policies that discriminated on the basis of sex relative to caring for a spouse, son, daughter, or parent with a serious medical condition warranted waiver of sovereign immunity. However, the there was no similar evidence of sex discrimination with respect to sick-leave policies for employees themselves and therefore the States’ immunity is not abrogated. Whether sovereign immunity shields the State from claims based on other provisions of the FMLA has yet to be determined.

Since this case was decided on the basis of sovereign immunity, it does not impact private and non-state public employers.

If you have questions about this decision or its application to public employers, please feel free to contact me at


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