Tag Archives | FMLA

FMLA protection may extend to travel with an ill relative

An employee tells you she’s taking a trip to Vegas with her terminally ill mother.  The purpose of the trip is to fulfill her mom’s “bucket list.”  Is the leave covered by the FMLA?  Absolutely, according to a recent Seventh Circuit case.  But the facts were somewhat unique – the employee was the primary caretaker of her mother: she lived with her, bathed and dressed her, and administered her medication.  She continued to do all these things in Vegas, a place her mother had always wanted to visit.  Displeased with her 6-day absence, her employer terminated her, taking the position the trip was not covered by the FMLA because it was not related to ongoing medical treatment.  The court disagreed, as the employee continued to “care for” her mother in Vegas, even though there was no medical treatment there.

A couple of lessons here: Be careful when denying FMLA leave.  The employer may have considered this a boondoggle, but the court took a different view.  Also, remember the FMLA is a floor.  An employer can always do more.  For an employee who single-handedly takes care of her dying mother, pulling the termination trigger seems a little heartless.

(The case is Ballard v. Chicago Park District)



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Calling an employee a “liability” can create liability

The employer in the recent Sixth Circuit case of Demyanovich v. Cadon Plating and Coatings just learned this, when the court sent the plaintiff’s case to a jury trial.  Pithiness aside, this FMLA/ADA case holds some important lessons for employers.  The employee in question suffered from congestive heart failure, necessitating numerous leaves of absence.  When he came back from his most recent leave, he requested light duty work and that he not be assigned overtime.  Denying both requests, the employer’s Vice President told the employee he was a “liability.”  When the employee sought an additional leave of absence, the VP stated he did not have to grant any FMLA leave, as the employer did not have enough employees to be subject to the Act’s requirements.  Thereafter, the employee was terminated for excessive absenteeism.

While the trial court granted summary judgment on the FMLA and ADA claims, the Sixth Circuit reversed on both.  With respect to the applicability of the FMLA, the court noted the employer was affiliated with a much larger company and therefore was a “joint employer” for purposes of the FMLA.  Regarding the ADA claim, the employer’s summary rejection of the requests for accommodations was enough to permit the plaintiff to proceed to trial.

Takeaways:  (1) even if you don’t think the FMLA applies to your workplace, check with counsel to be absolutely sure; (2) always engage in the interactive process when it comes to requests for reasonable accommodations.



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Accommodating mental disabilities: a great example of what to do

Earlier this month a federal court in Florida granted summary judgment to an employer on an ADA claim.  In Mecca v. Fla. Health Services, Dan Mecca was employed as a Peripherally Inserted Central Catheter (“PICC”) nurse.  His job involved inserting IV catheters into patients’ veins, typically in their arms, and threading them through the veins until the tip of the catether rested near their hearts.  As even this cursory explanation makes clear, it’s a job requiring precision and a lot of care; risks of infection can be high.

Mecca suffered from panic attacks and anxiety.  His employer granted him several leaves of absence under the FMLA (alas, we know the FMLA and ADA often intersect in these kinds of situations).  It also granted additional schedule changes on various occasions to accommodate his symptoms.  When Mecca returned from his last leave of absence on a reduced schedule basis, he failed to perform his duties.  His first day back he ignored multiple requests to assists patients.  He also left work early, without authorization.  So when HR told him he would face disciplinary action, he resigned and sued for discrimination under the ADA (among other things).

In dismissing Mecca’s claims, the court recognized what a fine job the employer did in accommodating Mecca.  It made several scheduling changes and allowed numerous leaves.  In the end, Mecca basically wanted to come and go as he pleased, without repercussions.  Not a reasonable accommodation, per the court.

Mental disabilities can be tricky issues to navigate.  The employer here got it right by making multiple accommodations in an effort to enable Mecca to be successful in his job.  When it finally put its foot down (or was about to, when Mecca resigned), it was for legitimate performance reasons.


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What to tell employees when they complain about “preferential” treatment (i.e., reasonable accommodations for other employees)

Not much.  Employees are not entitled to know what other employees are going through in terms of ADA-qualifying issues.  Some disabilities are obvious, but for those that are not, there is simply no right to know.  I’ve counseled many employers who don’t know how to respond to employee complaints that others are receiving what they perceive as preferential treatment.  If the so-called preference is really just a reasonable accommodation under the ADA, employers should be careful not to divulge confidential information.

A recent case shows how an employer walked this line just right.  In Lichty v. Allina Health, a nurse who returned from FMLA leave had lifting restrictions. Co-workers complained that she wasn’t doing her fair share.  The employer responded by telling the co-workers that accommodations were private and they were simply complying with legal requirements.  Smart move, because when the nurse later sued over her performance-based termination, the court tossed the case.

Also note that if the co-workers had engaged in harassing behavior towards the nurse based on the accommodation or the FMLA leave, the employer would have had an obligation to stop the harassment.

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My favorite legal theory, the “honest belief” rule

The “honest belief” rule is a great took for employers who do the right thing and investigate issues of alleged wrongdoing in the workplace.  It basically says that if an employer honestly and reasonably believes the reason for the action it takes (usually disciplinary in nature), then it won’t be held liable if said belief later turns out to be wrong.  This comes up in the context of workplace investigations most frequently.  For example, an employee complains of harassment.  The employer conducts a prompt, thorough and fair investigation and corroborates the allegations.  As a result, it terminates the alleged wrongdoer.  Alleged wrongdoer sues for wrongful termination and is able to prove s/he did not, in fact, harass anybody.  Applying the honest belief rule, a court will not find the employer liable for wrongful termination.  But, to avail itself of the rule, the employer had better have done its homework.

Another context the honest belief rule comes up is FMLA abuse by employees.  Take the recent case of Lineberry v. Detroit Medical Center (D. Mich. 2013).  An employee was on an authorized FMLA leave when the employer happened upon Facebook photos showing her having a grand time on a motorboat in Cancun.  (Co-worker “friends” of the employee complained about the posts to management).  The employer emailed the employee to ask about the vacation; she responded that she had to use a wheelchair much of the time while on vacation.  When she returned to work the employer investigated based on its suspicions of abuse.  The employee fessed up: she had indeed lied about using a wheelchair.  In response, the employer fired her and was then hit with an FMLA lawsuit.  The court found for the employer, holding it had an “honest belief” the employee was dishonest.

So how can an employer best avail itself of this defense?  Investigate, pure and simple.  Before taking disciplinary action, make sure you have a solid understanding of what happened.  And document the process and your analysis.



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Can you fire an employee on FMLA leave?

You know that employees cannot be penalized in any way as a result of exercising their rights under the FMLA.  But what if there is a legitimate reason to terminate that is unrelated to the FMLA leave?  A recent case instructs that sometimes, it’s perfectly legal to go ahead and fire an employee on leave.  In Brown v. City of Jacksonville, the Eighth Circuit upheld the termination of an employee on FMLA leave based on her poor performance.  The performance problems were  uncovered during her leave of absence, justifying the timing of the decision.  June Brown was a purchasing agent for the City of Jacksonville.  During her FMLA-protected leave of absence for knee replacement surgery, her supervisors discovered that her paperwork filings were replete with errors and she unnecessarily incurred overtime (when her co-workers were able to complete her tasks in a fraction of the time it took her).  Accordingly, there was no FMLA violation.

Takeaway for employers: It is still a risky proposition to take an adverse employment action when an employee is on a protected leave.  So tread carefully.  Sometimes, though, adverse action is appropriate.  To navigate these tricky waters, make sure to cross your t’s and dot your i’s.  Ask yourself: is there adequate documentation justifying the decision to terminate?  Are you confident it’s indeed unrelated to the protected activity (here, the FMLA leave)?  Are you sure no managers have made discriminatory or biased comments about the protected activity?  And when in doubt, check with counsel.


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Did you affix the new FMLA poster on Friday?

On March 8 the Department of Labor issued a final rule implementing new provisions of the FMLA.  The most notable provisions include:

  • making FMLA leave available for family members of members of the Armed Forces for qualifying exigencies arising out of the service member’s deployment;
  • extending FMLA military caregiver leave to include injuries or illnesses that were aggravated in the line of duty; and
  • implementing eligibility requirements for airline flight crew members.

Also, there is a revised FMLA poster that employers should use.  If it’s not already in your workplace, get it here and get it posted!

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FMLA protections can apply to even to non-eligible employees

Earlier this year the Eleventh Circuit held that an employee who was not yet eligible for FMLA leave could still be protected by the law.  The plaintiff in Pereda v. Brookdale Senior Living Communities, Inc. told her employer she would need leave following the birth of her child.  She was not yet eligible for the leave (nor did she need it, as she had not yet given birth).  Almost immediately, the employer began a campaign of harassment that culminated in the plaintiff’s termination.  When she sued, the lower court held she could not invoke the protections of the FMLA, as she was not technically covered by the law at the time of harassment and termination.  Not so fast, according to the Eleventh Circuit, which held a pre-eligibility request for a post-eligibility leave was protected activity.

So what’s the lesson for employers?  Pay attention to the spirit and not just the letter of the law.  Thinking you can squeak by an FMLA claim based on a technical reading of the law is the kind of thinking that usually lands you in court.  And let’s not forget about the cost on morale and employee relations.

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Insufficient notice of need for FMLA leave proves fatal for insubordinate employee

Last month, the Sixth Circuit denied the FMLA claim of a fired employee who suffered from a heart condition.  In Gipson v. Vought Aircraft Industries, plant maintenance worker Howard Gipson refused his supervisor’s order that he remove his personal effects from the union office.  His supervisor asked him three times to move his belongings, but Gipson stated he would not do so unless given a written request.  Frustrated, his supervisor raised his voice, stated he was giving a direct order, and threatened to fire Gipson if he did not comply.  Still, Gipson just walked away.  He claimed that his supervisor’s behavior made him feel unwell, triggering an underlying heart condition.  He then went to the company nurse, complaining of a headache.  He never mentioned his belief that his heart condition was flaring up.  Shortly thereafter, Gipson was terminated for insubordination.  Upon leaving work, Gipson drove himself to his doctor, where he made an appointment for three weeks hence.  

Gipson subsequently sued for interference with his FMLA rights.  At issue was whether Gipson provided his employer with sufficient notice of his need for FMLA leave.  The lower court held, and the Sixth Circuit affirmed, that he did not.  Gipson underwent triple bypass surgery two years prior to his termination.  He was afforded FMLA leave at that time.  However, at the time of his firing, he never mentioned that his heart was acting up, or that he needed leave related to his condition.  Complaining of a headache was insufficient, as a matter of law.

So what constitutes adequate notice under the FMLA?  Employees do not specifically have to mention the FMLA when requesting leave, to trigger their rights under the statute.  But they must provide enough information to put a reasonable supervisor on notice that they are suffering from a serious health condition.  Simply complaining of not feeling well or having a headache will not be enough.

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FMLA leave applies to same-sex parents

On June 22, 2010, the Department of Labor issued an interpretation of of the definition of “son or daughter” under the FMLA.  The DOL gave the term “parent” an expansive view, going beyond legal or biological relationships.  Thus, any employee who assumes the role of caring for a child is a “parent” under the statute and as such is entitled to leave to care for that child.  Secretary of Labor Hilda Solis made the impact of the interpretation clear, stating “All families, including LGBT (lesbian-gay-bisexual-transgender) families, are protected by the FMLA.”

According to the DOL, if an employer has a question about an employee’s entitlement to parental leave under the FMLA, the employer may require documentation or a statement to the effect that a family relationship exists.  A brief written statement is enough to trigger FMLA protection.

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Absenteeism and Alcoholism – When can you fire?

Last week a New York federal appeals court determined that while alcoholism can be considered a disability under the Americans with Disabilities Act (“ADA”), the impairment cannot protect an employee from termination if it affects his ability to show up for work. Bruce VandenBroek sued his former employer, claiming he was terminated because of his alcoholism and for taking medical leave to treat his alcoholism. The court in VandenBroek v. PSEG Power CT LLC disagreed, holding that where regular attendance is an essential job function, the Americans with Disabilities Act and the Family and Medical Leave Act should not shield an employee from termination when s/he is chronically absent from work.

Although regular attendance is an essential job function for most positions, the court noted that it was particularly important to this employee’s job because “reliable employee attendance was . . . essential to ensuring against a power outage or even an explosion.”  Finding the employee failed to prove he was terminated for taking protected leave under the FMLA, the court further ruled he was terminated for violating the employer’s “no call/no show” policy. 

Nevertheless, employers must act with caution when disciplining or terminating a disabled employee for attendance reasons, and be prepared to demonstrate the specific reasons regular and reliable attendance are essential to job performance. The EEOC offers guidance on this specific issue in “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”

This also serves as a reminder of the importance of accurate job descriptions. If regular attendance is an essential job function, it should be included in the job description.

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One more reason to take workplace investigations seriously (as if you needed one)

In Monday’s Ohio Employer’s Law Blog, Jon Hyman discussed the recent Sixth Circuit case of Weimer v. Honda of Amer., where the court upheld the jury’s verdict in favor of the employer.  The issue was whether the employer’s termination of the plaintiff violated his rights under the Family Medical Leave Act (FMLA).  Honda discharged Weimer based on the results of an investigation it conducted to determine whether Weimer’s stated need for FMLA leave was honest, or whether he had lied to get some time off.  At trial, the plaintiff presented some evidence that his need for leave had been, in fact, real.  No matter, said the court.  The issue for the determining liability was whether the employer honestly and reasonably believed that the plaintiff had lied, which would be grounds for termination.  Whether or not they were right, in other words, was not determinative.  

Mr. Hyman wisely points out that the “takeaway for employers from the Weimer case is to make sure that all reasons in support of a termination are documented.”  In addition, an employer who finds itself having to make a termination decision based on disputed facts should conduct a thorough investigation.  An investigation worth its salt should include (documented) interviews with all relevant individuals and a review of all relevant documents.  

Sometimes, an investigation can be conducted quickly and thoroughly in-house.  When emotions run high (as they often do in termination decisions), however, it can be a good idea to bring in an outside resource.  Not only to make sure the investigation is conducted properly, but also to take some heat off the employer for the results.  

By way of example, Warren & Hays recently conducted an investigation that substantiated some of the alleged wrongdoing.  The alleged wrongdoer ended up furious with us — the neutral, third party investigators — but not with the employer.  Thus, the employer came out looking like the “good guy” even though it disciplined the employee in question.  This made the transition back to business-as-usual mode at work far smoother than it would have been without our involvement. 

So keep us in mind not just to conduct thorough and defensible investigations, but also to enhance your employee relations by making you look good!

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Recap of this Week’s Employment-Related News

Inspired by lawyer Jon Hyman’s weekly wrap-up on his Ohio Employer’s Law Blog, following is a recap of some of this week’s employment-related news:

  1. The Emergency Influenza Containment Act was introduced in the U.S. House of Representatives. The legislation, applicable to employers with 15 or more employees, would require employers to provide up to five days of paid sick leave per year to workers afflicted with influenza or other, similar contagious illness.
  2. President Obama signed legislation that expands coverage of “exigency leave” and “servicemember caregiver leave” under the Family and Medical Leave Act. The National Defense Authorization Act for Fiscal Year 2010 extends coverage for exigency leave to the family of all active-duty servicemembers who are deployed in a foreign country. The legislation also extends coverage of “servicemember caregiver leave” to include caring for a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
  3. A Cuyahoga County jury has reminded local employers that retaliation will not be tolerated. (Recall last year’s $42 million jury verdict.) After a two-week trial, a former Dix & Eaton executive was awarded just over $1 million on her claim that she was fired in retaliation for complaining to HR that she believed she was being set up for a wrongful discharge claim because of her age. All supervisors should be trained on the importance of not retaliating, i.e. managing employees who have filed a claim or engaged in other protected activity.
  4. Employers must post a revised EEO poster by November 21, 2009. The EEOC’s revised “Equal Employment Opportunity is the Law” poster reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008) and adds information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The poster is available at: http://www.eeoc.gov/posterform.html.

Have a great weekend!

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The Top Five Reasons Not to do an HR Audit

1.   You’re not Sure what your HR Department Does and You Don’t Care

One of the key areas of an HR audit is evaluating whether your organization has allocated an appropriate level of resources to HR issues and making sure the HR function is aligned with the organization’s strategic business principles. A well functioning HR department can be critical to your organization’s overall success.

2.   You Like Spending Money Defending Employment-Related Claims

Regular HR audits result in fewer employment-related claims, including EEOC complaints and lawsuits.

3.   Compliance with Federal, State and Local Laws is not a Top Priority

One of the primary focuses of an HR audit is your organization’s compliance with employment-related laws relating to discrimination, harassment, FLMA, disabilities, and benefits.

4.   Employee Morale is not a Concern

An important function of the HR department is to serve as a resource for employees and to gauge employee morale and satisfaction. A well-run HR department that is trusted and open to employee complaints and concerns not only minimizes liability, but results in a more satisfied and productive workforce.

5.   The Hiring and Retention of a Top-Quality Workforce is not Important

An HR audit will analyze your organization’s hiring, on-boarding, performance management and termination procedures in order to ensure that you are hiring and keeping the best employees.

The point is that every dollar spent on an HR audit will save you several in risks avoided. Your organization can use the audit information to correct deficiencies that can lead to lawsuits, increased turnover and other liabilities. If your organization is sued, a properly executed HR audit can provide a valuable defense. Last, but certainly not least, effectively implementing the results of an HR audit will have a positive and lasting effect on your organization’s overall performance and culture.

Warren & Hays conducts thorough and effective HR audits for all sizes and types of organizations.

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