As reported here a few months ago, the Supreme Court considered a case involving a former State of Maryland employee. The employee claimed he was fired for taking FMLA leave, and the State defended on the basis that it cannot constitutionally be sued under this law. The defense is based on the idea that states have sovereign rights not to be sued by its citizens, except where there are laws or constitutional provisions that remove the sovereign protection.
Mr. Coleman sought time off to care for a serious health condition. When an employer has more than 50 employees, an eligible employee is generally entitled to use up to 12 weeks of leave in a year’s period to care for the employee or a family member. When the FMLA passed, one of its stated purposes was to address sex role issues, where women are expected to be the primary caregivers for sick family members. Because of the gender discrimination underpinnings of the law, the Supreme Court had previously held that a state can be sued, consistent with the U.S. Constitution, under the FMLA ifthe employee requested leave to care for a family member.
It took a different view when the employee needs time off for his or her own illness. But when the employee needs time to take care of himself, there is no sexism implicated. Both genders get sick or injured, and there was no suggestion that this portion of the law addressed historical sex or other discrimination. Therefore Mr. Coleman is not entitled to sue the State in federal court to enforce his FMLA rights.
This ruling affects only government employees. Employees in the private sector are still eligible for FMLA leave for their own illnesses.
Sovereign immunity can be, and has been, waived in a number of situations. According to The Daily Record, State Senator Jamie Raskin states that a hearing might be desirable on the issue whether the State ought to waive its sovereign immunity so as to allow employees self-care rights.