DISPOSITION:  [*1]  Loyola's renewed motion for summary judgment [48] denied.



COUNSEL: For HEIDI K CHAN, plaintiff: Ronald Barry Schwartz, Hedberg, Tobin, Flaherty & Whalen, P.C., Chicago, IL.
 
For LOYOLA UNIVERSITY MEDICAL CENTER, defendant: Richard F. Nelson, Richard F. Nelson & Associates, Chicago, IL.

JUDGES: JOAN B. GOTTSCHALL, United States District Judge.

OPINIONBY: JOAN B. GOTTSCHALL

OPINION: MEMORANDUM OPINION AND ORDER

Plaintiff Heidi K. Chan brought this action against defendant Loyola University Medical Center ("Loyola" pursuant to the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Chan claims that, in violation of the FMLA, Loyola failed to provide her notice that her leave of absence due to her injury would count against her annual FMLA leave and that her paid sick leave and vacation time would run concurrently with her 12-week FMLA leave.

On March 1, 1999, this court denied the parties' cross-motions for summary judgment. Loyola had argued that its notice to Chan complied with the FMLA and its regulations, while Chan argued that the notice was insufficient. Currently before the court is Loyola's renewed motion for summary judgment, which contends  [*2]  that certain Department of Labor regulations implementing the FMLA are invalid. However, as a result of a pre-trial conference with the parties, it became clear to the court that there are no factual disputes regarding Loyola's purported notice to Chan. In retrospect, this court should have determined as a matter of law if Loyola's notice to Chan complied with the FMLA regulations. Therefore, this court is sua sponte reconsidering its earlier decision denying the parties' cross-motions for summary judgment as well as addressing Loyola's renewed motion.

BACKGROUND n1
 
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n1 The background section is taken from this court's March 1, 1999 opinion. Citations are to materials filed with the cross-motions for summary judgment.
 
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A. The Parties

Loyola operates a medical center in the Chicago area. Loyola is an "employer" as defined under the FMLA. In November 1977, Loyola hired Chan to work as a registered pharmacist in Loyola's medical center.

B. Chan's Injury

On December 13, 1995, n2  [*3]  Chan fractured one of her legs while she was skiing in Utah. As a result of the injury, Chan underwent surgery on her injured leg. Shortly after Chan was injured, she notified her supervisor and manager, Steve Dean, that she had suffered an injury and would require surgery. Chan and Dean spoke by telephone while Chan was still hospitalized. Dean testified in his deposition that "we spoke when Heidi was in the hospital, and I told her that I would give her the forms for FMLA." [Nov. 11, 1997 Dean Dep. p. 43-44]. Dean further testified he told Chan to "fill out the form and get them back to me. That'll start your leave." [Id. p. 44].
 
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n2 In Chan's 12(M) statement in support of her motion for partial summary judgment, Chan states December 14, 1995 as the date she injured her leg. However, in her deposition, Chan testified that the injury occurred on December 13, 1995.
 
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C. Loyola's Standard Packet of FMLA Material

After Chan was released from the hospital, Loyola provided her with its standard packet  [*4]  of material related to FMLA leave. The packet contained (1) a five-page summary of the FMLA that included "Guidelines for Employees"; (2) a "Family/Medical Leave Request for Leave Form"; and (3) a "Family/Medical Leave Return to Work Medical Certification Form." The five-page summary highlighted certain provisions of the FMLA. Among other things, the summary contained sections entitled "Employer Coverage," "Employee Eligibility," "Leave Entitlement," and "Job Restoration." The "Leave Entitlement" section included the following paragraph:

 
Subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave. The employer is responsible for designating if paid leave used by an employee counts as FMLA leave, based on information provided by the employee. In no case can an employee's paid leave be credited as FMLA leave after the leave has been completed.

 
[Loyola's 12(M), Ex. E] (emphasis in original). Further, the "Guidelines For Employees" provided to Chan included the following two paragraphs:

 
If an employee requests a leave for non-medical reasons, accrued  [*5]  vacation time and personal/bonus days may be used for pay purposes. Any leave requested for the employee's own illness will be paid through accrued sick time. Vacation, personal and bonus time may is [sic] payable once the sick bank is exhausted.
 
Employees on leave under the Family and Medical Leave Act are granted up to 12 weeks of leave per calendar year. Upon return within the 12-week time period, an employee will be re-instated in the old position or an equivalent position. However, if the position no longer exists due to lay-off or restructuring, the employee is not guaranteed the same or equivalent position.

 
[Loyola's 12(M), Ex. E].

In late December, Chan completed the forms included in the packet of information and had her husband return them to Dean. On the "Family/Medical Leave Request For Leave Form," under the heading "Reason for Requested Leave," Chan checked the box that stated "serious health condition which makes me unable to perform the functions of my position." [Loyola's 12(M), Ex. F]. In addition, Chan submitted a "Certification of Physician or Practitioner" form completed by her treating physician. The form indicated that Chan's medical condition  [*6]  was indefinite and that Chan was unable to perform her work duties.

D. Approval of Chan's FMLA Leave and General Leave

Chan later received a letter dated February 21, 1996 from Dean indicating that Chan's "Family Medical Leave" would expire on March 6, 1996. This was the first written communication Chan had received from Loyola regarding her leave since she had submitted her request for leave. March 6, 1996 is 12 weeks from December 13, 1995 -- the date of Chan's skiing accident. Chan had been paid during the period she had thus been on leave and according to her pay stubs, Chan was exhausting her accumulated sick days and vacation days during this period. The February 21 letter also provided Chan with general information about extending her leave under Loyola's general leave of absence policy. The letter further indicated that "most positions cannot be left open. Once I receive your request for additional leave time, I will contact you to discuss whether or not we will be able to hold your position." [Loyola's 12(M), Ex. H].

On February 26, 1996, Chan submitted forms for general leave. In a letter dated March 20, 1996, Dean notified Chan that her FMLA leave had expired  [*7]  March 6, 1996 but that her general leave had been approved for the period March 7, 1996 through May 1, 1996. In the same letter Dean also wrote the following

 
I must also inform you that the position you held as Registered Pharmacist in the Department of Pharmacy can no longer be held for you. You would be eligible to return to a registered Pharmacist position in Pharmacy if your leave has not expired and a position is open when you are able to return to work. If a Pharmacist position in Pharmacy is not available, you may apply for any open position at Loyola for which you are qualified, but there is no guarantee of re-employment.

 
[Loyola's 12(M), Ex. K]. In March or April 1996, Loyola converted Chan's registered pharmacist position into two pharmacist technician positions.

On April 25, 1996, Chan requested a three-month extension of her general leave of absence. Chan stated in her request form that "as instructed by my supervisor, this is a requirement while I am waiting for the first available opening in the Pharmacy Dept. after my medical leave of absence. At the present time I am ready to return to my former duties, but no position is available." n3 [Loyola's  [*8]  12(M), Ex. L]. Dean notified Chan that her request for an extension had been approved for an additional three months.
 
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n3 On April 11, 1996, Chan's treating physician indicated that Chan could return to work as early as May 15, 1996. [Loyola's 12(M), Ex. N].
 
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On July 10, 1996, Chan again requested an extension of her general leave until November 1, 1996. Chan stated in her request form that "I am waiting for [a] pharmacist position to become available." [Loyola's 12(M), Ex. O]. In a letter dated July 20, 1996, Dean approved Chan's extension for the period August 1 to November 1, 1996. In addition, Dean's letter informed Chan that "due to changes occurring at Loyola and throughout the health care industry, it is not anticipated that a pharmacist position will become available in our Department in the foreseeable future" and "that future requests for extensions will not be granted. I encourage you to seek other opportunities in the marketplace." [Loyola's 12(M), Ex. P]. On November 11, 1996, Loyola terminated  [*9]  Chan after her last extension of general leave had expired.

E. Chan's Claim

Chan and Loyola do not dispute the above facts. Rather, they disagree as to whether Loyola provided Chan with the notice required by the FMLA regulations. Chan contends that Loyola did not notify Chan that her leave would count against her annual FMLA leave. Chan claims that if Loyola did not provide adequate notice to Chan, then her 12 weeks of FMLA leave would not begin to run until at least February 21, when Dean specifically referred to FMLA leave in a letter to Chan. Further, Chan argues that Loyola failed to notify her that her paid sick leave and vacation time would be substituted for part of her 12-week FMLA leave. At the time of her accident, Chan had accumulated 393.27 hours of paid sick leave and 119.9 hours of vacation. n4 Chan contends that had her paid sick leave and vacation time run consecutively with her FMLA leave, instead of concurrently, Loyola would have been required to hold a position open for her until she was able to return to work in May 1996.
 
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n4 Chan had accumulated roughly 10 weeks of paid sick leave and 3 weeks of paid vacation based on a forty-hour work week.
 
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In its renewed motion for summary judgment, Loyola argues that the FMLA regulations requiring an employer to notify employees that leave is designated as FMLA leave and that paid leave will count toward the 12 weeks of FMLA leave are invalid.

STANDARD OF REVIEW

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court will construe the evidence submitted by the parties and all inferences that can be reasonably drawn therefrom in the light most favorable to the nonmoving party. O'Connor v. DePaul University, 123 F.3d 665, 669 (7th Cir. 1997).

DISCUSSION

A. The FMLA and the Implementing Regulations

The FMLA gives an eligible employee the right to take up to 12 weeks of unpaid leave in a 12-month period for the birth, adoption, or assumption of foster care of a child, for the care of a spouse or immediate family member with a serious health condition, and for a serious health condition  [*11]  that prevents the employee from performing the functions of his or her job. 29 U.S.C. § 2612(a)(1). The FMLA was enacted because Congress found, among other things, "inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." 29 U.S.C. § 2601(a)(4). The Act was intended to "balance the demands of the workplace with the needs of families" and "entitle employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b)(1) & (2). The FMLA seeks to accomplish these purposes "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(3).

The FMLA applies to, among other entities, private-sector employers of 50 or more employees. 29 U.S.C. § 2611(4)(A)(i). An employee is eligible for FMLA leave if she has worked for a covered employer for at least 1,250 hours during the preceding 12 months. 29 U.S.C. § 2611(2)(A). Here, it is undisputed that Loyola is a covered employer and Chan is an eligible employee.

As noted above, an eligible employee  [*12]  is entitled to a total of 12 work-weeks of unpaid leave in a 12-month period because of, among other things, "a serious health condition" that results in the employee's inability to perform her job requirements. 29 U.S.C. § 2612(a)(1)(D). An employer may require employees to provide certification from their health care providers to support their request for leave. 29 U.S.C. § 2614. An employer may require employees to substitute any accrued paid sick leave, personal leave, or vacation time for any part of the 12-week leave. 29 U.S.C. § 2612(d)(2). Thus, the FMLA does not require an employer to provide 12 weeks of unpaid leave in addition to sick leave, personal leave, or vacation time. n5 At the conclusion of a qualified leave period, the employee is entitled to reinstatement to her former position, or to an equivalent one, with the same terms and benefits. 29 U.S.C. § 2614(a)(1). The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the FMLA. 29 U.S.C. § 2615(a)(1).  [*13] 
 
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n5 Although the FMLA requires that an employer provide 12 weeks of unpaid leave, "nothing in this Act or any amendment made by this Act shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Act or any amendment made by this Act." 29 U.S.C. § 2653.
 
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The FMLA allows an employer to refuse to restore a "highly compensated employee" to his or her former position if holding open the position would cause "substantial and grievous economic injury to the operations of the employer." 29 U.S.C. § 2614(b)(1)(A). However, the employer must give notice to the employee "at the time the employer determines such injury would occur" that the employer does not intend to restore the employee to his or her position. 29 U.S.C. § 2614(b)(1)(B).

Aside from requiring an employer to give notice when the employer does not plan to restore a highly compensated  [*14]  employee to his or her position, the FMLA itself does not specify what notice an employer must provide an employee regarding FMLA leave. n6 The FMLA authorized the Department of Labor to "prescribe such regulations as are necessary" to implement the FMLA. The FMLA regulations promulgated by the Department of Labor require the employer to "provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations." 29 C.F.R. § 825.301(b)(1). Among other things, the written notice must specify

 
(i) that the leave will be counted against the employee's annual FMLA leave entitlement (see § 825.208);

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(iii) the employee's right to substitute paid leave and whether the employer will require the substitution of paid leave, and the conditions related to any substitution.

 
29 C.F.R. § 825.301(b)(1)(i) and (iii). Another section of the regulations also describes the employer's obligations for providing notice to employees under the FMLA:

 
(a) In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying,  [*15]  and to give notice of the designation to the employee. . . .

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(b)(1) Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave. If there is a dispute between an employer and an employee as to whether paid leave qualifies as FMLA leave, it should be resolved through discussions between the employee and the employer. Such discussions and the decision must be documented.
 
(2) The employer's notice to the employee that the leave has been designated as FMLA leave may be orally or in writing. If the notice is oral, it shall be confirmed in writing, no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday). The written notice may be in any form, including a notation on the employee's pay stub.

 
29 C.F.R. § 825.208(a), (b)(1) and (b)(2). "If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave  [*16]  taken does not count against an employee's FMLA entitlement." 29 C.F.R. § 825.700(a).
 
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n6 The FMLA does impose a notice obligation on an employee who intends to take "foreseeable leave." The FMLA requires that, when leave is foreseeable, an employee must provide his or her employer with 30 days' notice, or such notice as is practicable, that he or she intends to take FMLA leave. 29 U.S.C. § 2612(e).
 
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The regulations further specify the employer's obligations to provide notice that it will substitute paid leave for unpaid leave.

 
If the employer requires paid leave to be substituted for unpaid leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, this decision must be made by the employer within two business days of the time the employee gives notice of the need for leave, or, where the employer does not initially have sufficient information to make a determination, when the employer determines that the leave qualifies as FMLA leave if this happens  [*17]  later. The employer's designation must be made before the leave starts, unless the employer does not have sufficient information as to the employee's reason for taking the leave until after the leave commenced. If the employer has the requisite knowledge to make a determination that the paid leave is for an FMLA reason at the time the employee either gives notice of the need for leave or commences leave and fails to designate the leave as FMLA leave (and so notify the employee in accordance with paragraph (b)), the employer may not designate leave as FMLA leave retroactively, and may designate only prospectively as of the date of notification to the employee of the designation. In such circumstances, the employee is subject to the full protections of the Act, but none of the absence preceding the notice to the employee of the designation may be counted against the employee's 12-week FMLA leave entitlement.

 
29 C.F.R. § 825.208(c). "If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave . . ., the employee will remain entitled to all the paid leave which is earned or accrued under the terms of the employer's plan." 29 C.F.R. § 825.207(f).  [*18] 

B. Loyola's Challenge to the Notice Regulations

The standards for reviewing a challenge to the validity of administrative regulations are set forth in

Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984): 
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

 
Id. at 842-43. The Chevron court noted that  [*19]  an administrative agency must formulate policy and make rules to fill gaps left by the underlying statute.

Id. at 843. 
If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

 
Id. at 843-44. Finally, the Chevron court emphasized again the deference to be accorded to regulations promulgated by an administrative agency:

 
We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations has been consistently followed by this Court whenever decision  [*20]  as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.

 
Id. at 844-45 (citations and quotation omitted).

Loyola argues that certain regulations -- those requiring an employer to designate leave as FMLA leave and to notify an employee if paid leave will be substituted for unpaid leave -- are invalid because they conflict with the FMLA. As noted above, when an employer fails to give an employee notice that leave is designated as FMLA leave or that paid leave is being substituted for unpaid leave, then the regulations may require an employer to provide more than 12 weeks of leave. Loyola argues that the FMLA was intended to guarantee employees a minimum of 12  [*21]  weeks of leave and that the regulations are inconsistent with the statute because they may require an employer to provide more than 12 weeks of leave.

As noted in Chevron, an administrative agency has the power to fill in gaps in a statutory scheme, provided the regulations are based on a reasonable interpretation of the statute. Here, there is no question that there are gaps in the FMLA. As noted above, the FMLA does not, in general, prescribe what type of notice regarding FMLA leave an employer must provide employees. The FMLA does not specify when the 12 weeks of FMLA leave begin or how FMLA leave is initiated. The FMLA provides that an employer or an employee may substitute paid leave for unpaid leave, but it does not specify how or when an employer or employee must inform the other that paid leave will be substituted for unpaid leave.

While the FMLA did not specifically delegate to the Department of Labor the authority to promulgate regulations establishing what notice an employer must provide, the FMLA delegated to the Department the authority to prescribe such regulations as are necessary to implement the FMLA. Under Chevron, a court must uphold the FMLA regulations  [*22]  unless they are "arbitrary, capricious, or manifestly contrary to the statute." 467 U.S. at 844.

Under the regulations, an employee must notify the employer of the need for leave. 29 C.F.R. §§ 825.302 and 825.303. The employee need not specify that he or she is seeking FMLA leave, but must state a qualifying reason for the leave. Id. The employer is responsible for determining if the employee is eligible for FMLA leave. See 29 C.F.R. § 825.208. If so, then the employer must notify the employee that the leave is FMLA leave and will count toward the employee's 12-week entitlement. 29 C.F.R. § 825.208(b)(1).

The employer is required to designate the leave as FMLA leave within 2 days of obtaining sufficient information to ascertain that a leave is being taken for a reason covered by the FMLA. Id. However, the regulations are flexible as to the form of the notice. The employer may provide notice to the employee either orally or in writing. 29 C.F.R. § 825.208(b)(2). If the notice is oral, it must be "confirmed in writing no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than  [*23]  the subsequent payday.)" Id. In addition, "the written notice may be in any form, including a notation on the employee's pay stub." Id. If an employer fails to notify an employee that leave is designated as FMLA leave, then the leave does not count against the employee's 12-week entitlement. 29 C.F.R. §§ 825.208(c) and 700(a). However, in certain circumstances, such as when an employer cannot ascertain whether a leave is for an FMLA reason, an employer is allowed to retroactively designate leave as FMLA leave. See 29 C.F.R. § 825.208(d) and (e). Finally, an employer is required to notify the employee whether the employer will require paid leave to be substituted for unpaid leave. See 29 C.F.R. §§ 825.208(c) and 825.301(b)(1)(iii).

In Cox v. Autozone, Inc., 990 F. Supp. 1369 (M.D. Ala. 1998), the plaintiff took 13 weeks of paid temporary disability leave because of her pregnancy. She missed a total of 15 weeks of work and was demoted when she returned. She claimed that because she was never informed by the employer that her disability leave would count toward her 12-week FMLA entitlement, she was also entitled to 12 weeks of unpaid leave and was entitled to  [*24]  return to her old position. The court sua sponte found invalid the regulations requiring an employer to notify an employee that he or she is using FMLA leave and that paid leave is being substituted for unpaid leave. The Eleventh Circuit recently affirmed Cox in McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999). n7
 
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n7 One court in this district has adopted the reasoning in Cox and McGregor. See Neal v. Children's Habilitation Center, 1999 U.S. Dist. LEXIS 14762, No. 97 C 7711, 1999 WL 706117, at *2 (N.D. Ill. Sept. 10, 1999) (Gettleman, J.). The Seventh Circuit has discussed 29 C.F.R. § 825.208 but has not addressed the validity of the notice provisions in the FMLA regulations. See Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997).
 
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In striking down the regulations, the courts emphasized that the FMLA entitles an eligible employee "to a total of 12 workweeks of leave during any 12 month period." McGregor, 180 F.3d at 1308 (citing  [*25]  29 U.S.C. § 2612(a)(1)); Cox, 990 F. Supp. at 1372, 1375 (same). The courts concluded that the regulations impermissibly expanded and extended the 12-week entitlement. The courts found the regulations' notice provisions were contrary to the statute, noting that the FMLA explicitly was intended to "accommodate the legitimate interests of employers." McGregor, 180 F.3d at 1308; Cox, 990 F. Supp. at 1376. The McGregor court concluded that "where an employer such as defendant exceeds the baseline 12 weeks by providing not only more leave than FMLA but also paid leave, the employer should not find itself sued for violating FMLA." 180 F.3d at 1308. The McGregor court also noted that "where Congress wanted explicit notice provisions with significant consequences, it provided for them." McGregor, 180 F.3d at 1308 (citing 29 U.S.C. §§ 2613 and 2614). As indicated above, § 2613 allows an employer to require an employee to provide medical certification to support his or her request for leave. Section 2614 requires an employer to notify a highly compensated employee  [*26]  if the employer does not intend to restore the employee to his or her former position.

McGregor and Cox stress that in some circumstances, the regulations may force employers to provide more than 12 weeks of leave. To avoid this situation, however, the regulations impose only a modest burden on employers. An employer must notify the employee that his or her leave is FMLA leave. The regulations give an employer flexibility as to the form of the notice. Furthermore, in some circumstances an employer may retroactively designate leave as FMLA leave. It is only when (1) an employer has sufficient information to determine that an employee's leave is for a reason covered by the FMLA and (2) the employer fails to notify the employee that the leave is FMLA leave that an employer may be required to provide more than 12 weeks of leave.

The regulations provide an incentive for employers to inform employees that leave is FMLA leave. The regulations have the salutary effect of ensuring that employees are made aware of their rights under the FMLA. If employees are informed that leave is FMLA leave and counts toward their 12-week entitlement, they will better be able to plan and manage their  [*27]  allotment of leave. The regulations further help to prevent misunderstandings between employers and employees and prevent the situation that plaintiff claims happened here: that she erroneously believed her job was safe and failed to return to work under circumstances where a return to work-although extremely difficult-might have been possible.

The requirement that an employer notify an employee if the employer intends to substitute paid leave for unpaid leave similarly imposes only a minimal burden on an employer. Many employers offer sick leave, vacation leave, and personal leave. n8 The regulations recognize that it is important for employees to understand how paid leave will be combined with unpaid FMLA leave, so that employees understand how much leave they will be able to take and whether they will be compensated for their leave. n9 Under the regulations, an employer remains free to substitute paid leave for unpaid leave, limiting the total amount of leave to which an employee is entitled to 12 weeks. The only requirement imposed by the regulations is that an employer inform the employee that paid leave will be substituted for unpaid leave. In effect, the regulations set up  [*28]  a default in which it is presumed that an employer did not intend to substitute paid leave for unpaid leave where the employer fails to provide notice to the contrary.
 
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n8 The FMLA specifies that it should not be construed to diminish an employer's obligation under an employee benefit program or collective bargaining agreement to provide greater family or medical leave than required by the FMLA. See 29 U.S.C. § 2652.

n9 If an employer does not require substitution of paid leave for unpaid leave, the employee may elect to substitute paid leave in order to minimize the economic loss caused by the leave of absence.
 
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The construction of the FMLA set forth in Cox and McGregor -- that Congress intended to accommodate the concerns of employers and to set a minimum standard of 12 weeks of leave, and would not have adopted any provisions that would have required employers to provide more than 12 weeks of leave -- is a plausible construction of the FMLA. However, it is not the only  [*29]  reasonable interpretation of the FMLA. Another interpretation, that of the Department of Labor, recognized gaps in the FMLA. The Department concluded that it was important that employees be informed of their rights under the FMLA and determined that employers should bear some modest burden of informing employees about certain aspects of FMLA leave as to which the statute gives the employer choices. Among other things, the regulations impose on employers an obligation to notify employees that a leave is FMLA leave and that, if the employer so elects, paid leave must be used for FMLA. The regulations reflect a concern for accommodating employers by, among other things, allowing flexibility as to the form of the notice and permitting retroactive designation of leave as FMLA leave in some circumstances.

This court concludes that the regulations reflect a "reasonable accommodation of conflicting policies," Chevron, 467 U.S. at 843-44, and so must be upheld. See Ritchie v. Grand Casinos of Mississippi, Inc., 49 F. Supp. 2d 878, 880-81 (S.D. Miss. 1999)(rejecting challenge to regulations based on Cox); see also Longstreth v. Copple, 1999 U.S. Dist. LEXIS 16654, No. C97-4100 MWB, 1999 WL 979451  [*30]  (N.D. Iowa Oct. 22, 1999) (denying motion for reconsideration based in part on McGregor). n10 As Cox and McGregor emphasize, the FMLA was intended to "accommodate the legitimate interests of employers." However, the stated purposes of the FMLA to "balance the demands of the workplace with the needs of families" and "entitle employees to take reasonable leave for medical reasons" implicitly require that employees be made aware of their rights and responsibilities under the FMLA. The regulations fill in gaps in the FMLA by prescribing what information employers must provide to employees (and vice versa) and when and how they must provide it. Loyola's motion for summary judgment as to the validity of the FMLA regulations is therefore denied.
 
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n10 As noted in Longstreth, numerous courts have found violations of the FMLA based on violations of the notice provisions in the FMLA regulations. See, e.g., Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998); Dintino v. Doubletree Hotels Corp., 1997 U.S. Dist. LEXIS 18145, No. Civ.A. 96-7772, 1997 WL 717208 (E.D. Pa. Nov. 14, 1997). These courts did not address claims that the regulations were invalid.
 
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C. The Sufficiency of the Notice in the Present Action

In its March 1, 1999 memorandum opinion and order, this court examined whether Loyola provided Chan with sufficient notice that her leave was FMLA leave and that her sick leave and vacation leave would be substituted for (or would count toward) her 12-week FMLA entitlement. Because this court has concluded that there are no genuine issues of material fact, this court has revisited the parties' earlier submissions and has determined as a matter of law that the notice was insufficient to comply with the FMLA regulations. n11
 
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n11 For a more complete discussion of the contentions of the parties, see this court's March 1, 1999 memorandum opinion and order. This opinion assumes familiarity with the March 1 opinion.
 
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1. The Designation of Leave as FMLA leave

The FMLA regulations permit oral notice that leave is designated as FMLA leave. 29 C.F.R. § 825.208(b)(2). In its March 1 opinion, this court concluded that Chan's supervisor, Steve  [*32]  Dean, provided Chan with sufficient oral notice that her leave would be FMLA leave. Dean testified at his deposition that he told Chan he "would give her the forms for FMLA . . . . Fill out the form [sic] and get them back to me. That'll start your leave." [Nov. 11, 1997 Dean Dep., p. 43.] While this can stand as oral notice, it is hardly a model of clarity and makes it important that Loyola satisfied the written notice requirements of the regulations.

When an employer provides oral notice that leave is designated as FMLA leave, the oral notice must be confirmed in writing. 29 C.F.R. § 825.208(b)(2). The regulations allow an employer flexibility as to the form of the written notice that leave is FMLA leave. The regulations provide that "the written notice may be in any form, including a notation on the employee's pay stub." Id.

As noted above, Loyola provided Chan with a packet of material including (1) a five-page summary of the FMLA that included "Guidelines for Employees"; (2) a "Family/Medical Leave Request for Leave Form"; and (3) a "Family/Medical Leave Return to Work Medical Certification Form." Loyola argued that this packet provided Chan with written notice that her  [*33]  leave was FMLA leave.

The packet of information was not sufficient to constitute written notice that Chan's leave was designated as FMLA leave. Loyola is arguing that the materials -- a summary of the FMLA, a request form, and a health care provider certification form -- provided Chan with written notice that her leave was FMLA leave before she had even completed and returned the form requesting FMLA leave. This argument is not persuasive. At most, the materials informed Chan that she was applying for FMLA leave. Chan was not informed in writing that her request for FMLA leave had been granted, and that her leave would be designated as FMLA leave and that it would count toward her 12-week FMLA leave entitlement.

Moreover, the materials fail to make clear that an employee in Chan's situation will be given FMLA leave. Loyola's "Guidelines for Employees" contain the following language:

 
If an employee requests a leave for non-medical reasons, accrued vacation time and personal/bonus days may be used for pay purposes. Any leave requested for the employee's own illness will be paid through accrued sick time. Vacation, personal and bonus time may is [sic] payable once the  [*34]  sick bank is exhausted.

 
Although Chan was requesting leave for an injury and not for an illness, the second sentence appears to apply to Chan's situation. It is unclear what Loyola is trying to convey. The sentence seems to indicate that an employee who goes on leave for her own illness (or injury) will use up her sick leave. It does not, however, indicate that an employee requesting leave for her own illness (or injury) will be on FMLA leave. It refers to "any leave," not FMLA leave. The last sentence seems to suggest that it is up to the employee to decide if she wants to use her vacation, personal and bonus time for her leave once her sick leave is exhausted. n12 It does not indicate that the employee will be on FMLA leave while she is using up her vacation, personal or bonus time. At the time Chan began her leave, she had accumulated approximately 10 weeks of paid sick leave and 3 weeks of vacation leave. Her paycheck stubs during her leave indicated that she was exhausting her sick leave and vacation leave, but there was no indication on the paycheck stubs that she was also exhausting her FMLA leave. An employee such as Chan could reasonably conclude that she was merely  [*35]  using sick leave and vacation leave, not FMLA leave.
 
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n12 Of course, the confusing typographical error makes it even more difficult to ascertain what Loyola was attempting to say. The use of "may" would seem to indicate that the decision to use vacation, personal and bonus time is up to the employee. The use of "is" could be construed as requiring an employee to exhaust vacation, personal and bonus time, though it is far from clear.
 
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It is illuminating to contrast the purported notice here with the "Prototype Notice" provided by the Department of Labor as an appendix to the FMLA regulations. The Prototype Notice contains the following straightforward language:

 
This is to inform you that: (check appropriate boxes, explain where indicated)
 
1. You are [] eligible [] not eligible for leave under the FMLA.
2. The requested leave [] will [] will not be counted against your annual FMLA leave entitlement.

 
Here, there was no timely notice that Chan's leave was designated as FMLA leave and would  [*36]  count toward her 12-week FMLA leave entitlement. Chan was not informed in writing that her leave was FMLA leave until the February 21, 1996 letter from Dean. Thus, under 29 C.F.R. §§ 825.208(c) and 825.700(a), Chan's FMLA leave did not begin to run until February 21, 1996. Chan is entitled to summary judgment on her claim that Loyola violated the FMLA regulations by failing to provide her with notice that her leave was designated as FMLA leave.

2. The Substitution of Paid Leave for FMLA Leave

Chan also claims that Loyola violated the FMLA regulations by failing to specify that her paid sick leave and vacation leave would be substituted for her unpaid FMLA leave. See 29 C.F.R. §§ 825.208(c) and 825.301(b)(1)(iii). Because Loyola failed to notify Chan that it was designating her leave as FMLA leave, this court need not address whether Loyola notified Chan that her paid sick leave and vacation leave would be substituted for her unpaid FMLA leave.

CONCLUSION

Loyola's renewed motion for summary judgment [48] is denied. After re-examining the parties submissions, this court concludes that Chan is entitled to summary judgment on her claim that Loyola failed to  [*37]  provide notice that it was designating her leave as FMLA leave [14].

Chan moved only for summary judgment as to liability. From this record, the court cannot determine what damages, if any, Chan is entitled to receive. A status hearing is set for December 14, 1999 at 9:30 A.M. to discuss further proceedings in this matter.

ENTER:

JOAN B. GOTTSCHALL

United States District Judge
 
DATED: November 18, 1999