Archive | FMLA

Title VII Protects Nursing Moms in the Workplace

Posted by on June 14, 2013 in Affordable Care Act, Discrimination, FLSA, FMLA, Lactation, Pregnancy 0

Discharge for Lactation Is Sex Discrimination  

In a recent decision, a federal appeals court held that a termination for “lactating or expressing milk” is sex discrimination under Title VII because it would clearly impose upon women “a burden that male employees need not – indeed, could not – suffer.”  The Court also ruled that lactation is a “related medical condition” of pregnancy such that the termination was actionable under Pregnancy Discrimination Act.  This decision, while not earth-shattering, serves as a reminder for employers about laws governing nursing breaks in the workplace.   Continue Reading →

Medical Leave Up? Ask for More Says the EEOC

Posted by on May 21, 2013 in ADA, Discrimination, FMLA, Good Faith Interactive Process, Medical Leave, Reasonable Accommodation, Vacant positions 0

Your Leave Is Up – Sorry but You’re Fired

Many employers have medical leave policies.  Most of those policies allow leave for a maximum duration often three to six months or even up to a year.  The FMLA, of course, guarantees job protection for 12 weeks.  But what is an employer to do if an employee has used up their FMLA leave (or is otherwise not eligible for FMLA), and they reach the maximum medical leave under the employer’s policy?

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Working at Home While on FMLA – Professional Courtesy or Interference?

Posted by on April 4, 2013 in FMLA, Leave of Absence 0

Often times when an employee is at home while on an approved FMLA leave, work-related questions will arise that only the employee can answer.  So, the manager or a co-worker will call the employee at home and get the answer.  Usually that’s not a problem – but it could be depending on how often the calls happen.  As a recent case held, a jury is going to decide just how often is too often so that it becomes interference with the employee’s rights under the FMLA.

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FMLA Forms Have Been Revised – Are Yours Up to Date?

Posted by on February 22, 2013 in FMLA, FMLA Forms 0

As we reported in our February 12, 2013 HR Insights blog positing New FMLA Regs and New FMLA Poster – March 8, 2013, the new FMLA regulations made several changes to the provisions dealing with military servicemembers and their families.  Besides requiring a new FMLA poster that addresses these changes, the U.S. Department of Labor Wage-Hour Division has now updated its FMLA forms in order to comply with the new regulations. Continue Reading →

New FMLA Regs and New FMLA Poster – March 8, 2013

Posted by on February 12, 2013 in FMLA, FMLA Forms, GINA, Poster 0

New FMLA Regs and New FMLA Poster – Finally

Over the past 5 years, the FMLA has been amended on several occasions. While the FMLA was amended most recently in late 2009 under the National Defense Authorization Act (“NDAA”) and the Airline Flight Crew Technical Corrections Act (“AFCTCA”), the U.S. Department of Labor Wage and Hour Division delayed in issuing proposed regulations until February 15, 2012.  Since that time, employers have been waiting on the issuance of final regulations.  The wait is now over.

On February 6, 2013, a Final Rule was issued and takes effect on March 8, 2013.  While most of the new regulations relate to rarely used FMLA provisions, including military caregiver leave for a veteran, qualifying exigency leave for parental care and job-protected leave for airline personnel and flight crews, there is one provision that all covered employers need to know about – and soon!  Continue Reading →

FMLA to Care for Adult Children – A Helpful Interpretation?

Posted by on January 22, 2013 in ADA, Disability, FMLA 0

The FMLA requires employers with 50 or more employees to grant up to 12 weeks of leave for, among other things, time off that is needed to care for an adult son or daughter over the age of 18 who is “incapable of self-care because of a disability.”  Ever since the Americans with Disabilities Act (“ADA”) was amended back in 2008 to broaden the definition of disability, there has been some question of how the ADA’s definitions affect the FMLA.  On January 14, 2013, the U.S. Department of Labor Wage and Hour Division issued an Administrator’s Interpretation clarifying an employee’s entitlement to leave under the FMLA for adult children.  Continue Reading →

Las Vegas Trip with Mom – Employer Rolls the FMLA Dice

Posted by on November 29, 2012 in "Needed to care for", FMLA, Leave of Absence 0

Did Daughter Really “Need to Care for” Mom in Las Vegas?

A jury is going to decide the winner of this game.  Recently a district court in Illinois denied an employer’s motion for summary judgment when it fired an employee who traveled with her mother to Las Vegas in order to “care for” her terminally ill mom.  It turns out that the mother who lived with the employee won a “make a wish”-type grant for terminally ill individuals and that she chose to go to Las Vegas as her “wish.”  The mother suffered from a number of conditions including congestive heart failure and diabetes.  Her daughter was her primary caregiver.  Yet there were no plans to receive any treatment while in Las Vegas.  The employee requested time off, but through some confusion in making that request it was never clear that the time off was for FMLA leave.  Further, there was never a submission of FMLA paperwork that would have established the “needed to care for” reason for the employee’s leave.  Continue Reading →

Anxiety and Panic and the FMLA – Employer Must Explain to the Jury

Posted by on November 21, 2012 in FMLA 0

Job Assignment Leads to Panic and Anxiety

A long-term care employer fired a nurse for “patient abandonment” after the nurse went to the Human Resources Department in a state of panic because she was going to be assigned to a unit for which she had not been trained.  Her supervisor had told her that she had “no choice” but to work in the unit and that if she didn’t she would be fired for patient abandonment and that a complaint would be filed with the Nursing Board, which could result in the loss of her nursing license.  Hearing that, the nurse went immediately to Human Resources where she began crying and shaking, and at one point she requested an ambulance.  Because of her obvious distress, the HR director told her to go home and that they would work something out the next day.  She did go home and saw her doctor the next morning.  She then presented the doctor’s note to HR advising that she should take the rest of the week off.  The HR department gave her FMLA forms, which she returned two days later.  So, this all seems pretty straight forward, but there was a hitch that ultimately puts the employer in front of a jury. Continue Reading →

Set Up to Fail? – Employer’s Plan Backfires

Posted by on November 3, 2012 in Discipline and discharge, Discrimination, FMLA, Pretext 0

One Last Chance or Set Up to Fail? 

Faced with an underperforming employee, an employer will often give the employee a chance to prove himself one last time before termination.  Sometimes that approach can backfire if not done carefully – especially if the employee can claim some legal protection – like using FMLA.

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Court gives FMLA “Treatment” the full treatment – What it is and what it isn’t

Posted by on July 12, 2012 in FMLA, Leave of Absence, No-fault attendance, Treatment 0

When is “Treatment” actually treatment under the FMLA?

Imagine that your employee who has been diagnosed with anxiety and chronic back pain asked for FMLA leave for an afternoon doctor appointment.  Your employee had already provided a doctor’s certification that his condition required periodic treatments but the afternoon appointment was with a different doctor.  So, you grant the FMLA leave for the appointment.  But later when you find out that he took the entire day off you started looking into what he did that day.  It turns out that in the morning he went to the first doctor’s office to make sure his records were being sent to the other doctor’s office where his afternoon appointment was scheduled.  In the morning he saw the first doctor in the lobby and got a refill on two of his prescriptions but he was neither examined nor evaluated while he was there. Continue Reading →

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