Post-Hibbs Decision Suggests the FMLA Battle is Not Over

A federal district court in Virginia has opined, but has not held, that full enforcement of the FMLA against states is not yet a sure thing.

In perhaps the first court discussion of sovereign immunity under the Family Medical Leave Act since the Supreme Court decided Nevada Dept. Of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003), a federal district court in Virginia has opined, but has not held, that full enforcement of the FMLA against states is not yet a sure thing.

A Virginia state employee sued the state for damages for denying him medical leave. The district court pointed out that Hibbs involved only the family leave entitlement of the FMLA and not the employee medical leave provision. "Since the ability of Congress to abrogate Eleventh Amendment immunity in the FMLA depends upon the equal protection guarantee of the Fourteen Amendment, the validity of such abrogation may be different as to the employee medical leave requirement." Fields v. Commonwealth of Virginia, 2003 WL 21383861 (W.D.Va. June 16, 2003).

However, since the state conceded that the claim was not barred by the 11th Amendment, the court did not decide the question.