Last Tuesday in a 5-4 decision, the U.S. Supreme Court concluded that sovereign immunity prohibits Congress from requiring that state governments comply with certain provisions of the Family and Medical Leave Act. In Coleman v. Ct. of App. of Md., the State of Maryland contended that Congress could not require states to allow employees to take FMLA leave to care for their own serious health conditions.

Sovereign immunity is not an absolute doctrine. Under the 14th Amendment to the Constitution, Congress has the ability to override state sovereign immunity in situations where the law in question is intended to address discrimination. In a previous case, the Court upheld application of the FMLA's family care provisions to state governments, citing Congressional intent to address gender discrimination concerns raised by the fact that women are more likely to bear the burden of caring for sick family members.

In a narrow decision, the Coleman majority concluded that this reasoning does not apply to self-care, because men and women are equally likely to have a need for this benefit. Absent evidence of sex discrimination in the Congressional record, this portion of the FMLA cannot overcome state sovereign immunity rights.

State government employees may have continuing leave rights under state law or policy. Some states may decide to waive their immunity to FMLA claims. Otherwise, state government employees denied leave for self-care will not be able to use the FMLA as a redress for any legal grievances.