Showing posts with label FMLA. Show all posts
Showing posts with label FMLA. Show all posts

Thursday, July 22, 2021

Coronavirus Update 7–22–2021: How the ADA and FMLA apply to Covid long haulers


The risks associated with Covid-19 aren't limited to the 625,000 Americans this virus has killed or the 2.3 million hospitalizations. One of the greatest risks comes from the fact that nearly one-third of Covid-19 patients will develop long-haul symptoms that long outlast the actual infection, and further that nearly one-third of all Covid long haulers had asymptomatic Covid cases. These long-haul symptoms can include fatigue, respiratory problems, "brain fog," body aches and muscle pain, abdominal issues, and loss of smell and taste. They can be quite debilitating and last for months or longer.

If you have an employee experiencing one or more of these long-haul symptoms, what are your legal obligations to that employee under ADA and FMLA?

Monday, May 3, 2021

Does President Biden have the political juice to make paid family and medical leave a reality?


For the past couple of administrations, it's a presidential rite of passage—unveiling a plan to provide paid family and medical leave to American workers. Last Wednesday night, President Biden released his proposal as part of his $1.8 trillion American Families Plan.

Thursday, February 4, 2021

No, you don’t get to keep your paid leave after your position is eliminated


The headline reads, "Trump aides made a late request to Team Biden to extend their parental leave. They said no." Here's the story:
[A] number of ex-Trump political officials … lost their parental leave when Joe Biden was sworn into office. It's a byproduct of the field they're in: Their boss (the president) may have been the one let go, but his departure has meant that they, too, lose their jobs and benefits. Still, they argue that the Biden administration should have honored their leave by keeping them on payroll until the end of it — a request that … the Biden transition did not grant.
One such employee, Vanessa Ambrosini, welcomed a new baby the week before Christmas, and was looking forward to parental leave through mid to late March. "I got completely screwed," she says.

No, Vanessa, you didn't. What you got was unemployed, a fact of which you should have been well aware since at least November 7. In fact, you should have been aware of it for more than a month before you started your maternity leave. It seems to me these employees are trying to take advantage of the consequences of which they were well aware in an attempt to make the new administration look bad. I don't buy it.

Monday, January 4, 2021

Coronavirus Update 1-4-2021: DOL approves telemedicine visits to establish a serious health condition under the FMLA


With the COVID-19 pandemic closing health-care-provider offices or severely limiting patient access, many have turned to telehealth to remotely obtain healthcare from the safety of their homes. The question arose, however, whether these remote visits would qualify as "treatment" under the FMLA's qualifying definition of a "serious health condition," which under the FMLA's regulations requires an "in-person visit to a health care provider," and does not include "a phone call, letter, email, or text message."

While you were celebrating your December holidays, the Department of Labor issued a Field Assistance Bulletin [pdf] addressing this issue. 

Saturday, March 14, 2020

BREAKING: House passes broad coronavirus stimulus and relief package, including paid sick and family leave


It’s been 12 days since I asked if coronavirus the thing that will finally make paid family and sick leave a national reality. Twelve days in the COVID-19 news cycle feels like 12 years. Regardless, I am happy to report that in the very early hours of this morning, by a bipartisan vote of 363-40, the House passed the Families First Coronavirus Response Act, sweeping legislation that will provide myriad emergency relief to businesses and individuals, including paid family and sick leave.

Shortly after the House passed the bill, President Trump tweeted his support, virtually assuring a swift run through the Senate and his signature.

Monday, March 9, 2020

Is an employee entitled to FMLA leave to care for the children of a family member with coronavirus?


Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.

The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).

Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”

Tuesday, March 3, 2020

Can an employer require an employee with a serious health condition to take FMLA leave?


Yesterday, in response to my post about coronavirus and paid sick leave, a commenter on LinkedIn asked whether an employer can force a sick employee to take FMLA leave.

The answer is a qualified “yes.”

Tuesday, February 18, 2020

7th Circuit concludes employer should have advised injured employee of FMLA rights even after employee went AWOL


Buddy Phillips injured his ribs while playing with his grandchildren. Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.

He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.

Wednesday, January 22, 2020

Dream on — lawsuit by Aerosmith drummer highlights the legal risk of "fitness for duty" exams


Joey Kramer, Aerosmith's founding and longtime drummer, is suing his band mates after they blocked him from joining them at upcoming high-profile events, including this weekend's honor as the 2020 MusiCares Person of the Year and its Lifetime Achievement Award at this weekend's Grammys.

Kramer claims that Steven Tyler, Joe Perry, Tom Hamilton, and Brad Whitford are not allowing him back in the band following a temporary disability from minor injuries he suffered last year. According to TMZ, Kramer claims the band required him to audition to prove he was "able to play at an appropriate level" before he could regain his drummer role. He further claims that in this audition is unprecedented in the band's 50-year history, during which each of other members had to step away for various reasons.

This story got me thinking about an employer's rights when an employee seeks to return to work after a medically-related leave of absence. 

Thursday, December 12, 2019

Just because you’re out on FMLA does not grant you a license to threaten your co-workers


“Hey pussy … I’m going to get you for what you did.”

Ordinarily, if one employee confronts another employee with a threat like the one above, you’d consider it grounds for termination. Maurice Darby, however, claimed that the fact that he made the threat while out on FMLA leave constituted grounds for retaliation after his employer terminated him.

Monday, September 30, 2019

Are hangovers the next frontier of your FMLA headaches?


A German court recently ruled that a hangover qualifies as an “illness.”

Which got me thinking … are hangovers the next frontier of your FMLA headaches?

Thankfully, the answer to this question is almost certainly “no.”

But it’s worth reviewing the FMLA’s definition of “serious health condition” to see how I reach that conclusion.

Monday, September 23, 2019

No-fault attendance policies offer no cover when the ADA or FMLA are involved


An employee suffering from epilepsy, migraines, and heart condition asks (with a medical note) for two unpaid days off from work unpaid to treat symptoms related to her disabilities. Instead of granting the leave, the employer assigns the employee points under its no-fault attendance policy and fires her for exceeding the allowable number of attendance points. The EEOC has sued the employer, alleging disability discrimination.

Monday, September 16, 2019

Employee fired for stacking his intermittent FMLA leave with vacation days loses retaliation claim


Kevin LaBelle, a lab technician for Cleveland Cliffs, took occasional days off from work for approved intermittent FMLA leave for flare-ups related to a shoulder injury. His employer noticed that LaBelle seems to always take his FMLA leave by combining it with scheduled days off and vacation days.

Thursday, September 12, 2019

It’s hard to win a lawsuit when you admit you don’t have a case


James Scott’s employer fired him for accumulating 10 points under its no-fault attendance policy. He claimed FMLA retaliation, alleging that his employer unlawfully assessed some of his points while he was taking FMLA-protected leave to care for his ill wife.

At his deposition, however, Scott admitted that the FMLA had nothing whatsoever to do with his termination.

Thursday, August 29, 2019

No, your FMLA does not grant you license to threaten your coworkers


After being harassed by co-workers, Paul Ellis took to Facebook to air his grievances publicly. Among his comments was one that could be perceived as a threat violence: “he’s gonna have an accident on the dock.” When another employee brought a printout of the post to their employer, FedEx, an investigation began. During that investigation. Ellis admitted that one could perceive that comment as a threat. As a result, FedEx fired him.

Prior to his termination, Ellis frequently took leave under the FMLA to receive treatments for his chronic back pain and to take care of his sick mother. He alleged that FedEx retaliated against him for his use of FMLA leave by terminating him.

Monday, August 26, 2019

Is a vacation during an FMLA leave inconsistent with an employee’s serious health condition?


A few months ago I wrote about an employee fired for taking a fishing trip while out on an FMLA leave. In that case, the court upheld the termination as lawful. Recently, however, the Supreme Court of Massachusetts considered a similar case and reached the opposite result.

Tuesday, August 13, 2019

The law is a floor, not a ceiling: FMLA and IEP meetings


Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.

Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends—Jeff NowakSuzanne Lucas, and Eric Meyer—each of whom covered this story over the past few days.

Instead, I want to use my space today to make a broader point about the law in general.

Thursday, July 25, 2019

Which mental health service does the FMLA not cover?


Yesterday, I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need. Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician, or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker, or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

Wednesday, June 26, 2019

Facebook video sinks employee’s FMLA claim


Everything was going swimmingly for Thomas Dunger during his approved FMLA leave from his job as a mechanic for Union Pacific Railroad … until he decided to go on a fishing trip during his leave and a co-worker started live streaming their excursion on Facebook. A coworker showed the video to Dunger’s supervisor, who charged him with dishonesty for improper FMLA use. To his benefit (or, cynically, because he knew he had been hooked), at his disciplinary hearing Dunger copped to the fishing trip. His late-to-the-game attempt at honesty, however, did not save his job, and Union Pacific ultimately fired him. 

Tuesday, February 19, 2019

The FMLA does not require that an employee use magic words to request leave


According to the FMLA's regulations, "When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA." Courts do not interpret this burden as a heavy one. An employee need not use the letters "F-M-L-A," or any other magic words to request leave under the statute. As long as the employee provides enough information for the employer to reasonably conclude that an FMLA event described has occurred, the employee has met his or her obligation to provide notice of a request for an FMLA-qualifying leave.

What does this look like in practice? Consider the following two examples.