Who Cares? And Who Merely Assists Under the FMLA?

Posted on January 29, 2011 by Michael Soltis

Who cares…..for a covered family member under the FMLA as opposed to merely providing much appreciated assistance? The distinction is critical because absences “to care for” are protected by the FMLA while absences to assist are likely not.

Recall our recent post about an employee who took the day off to clean his mother’s flooded basement and argued his absence was protected under the FMLA because he was “caring for” his mom. The court rejected his argument because no evidence connected his mother’s hepatitis with his urgent need to clean the basement.

A recent case also rejected a son’s “caring for” argument.  In Chappell v. The Bilco Company, the employee claimed he should not have been terminated for absenteeism because he was “caring for” his mother, who has diabetes, on some of the days he was absent. The plaintiff had taken two days off to provide “comfort and support” to his mother after she attended a friend’s funeral because she was emotionally distraught and was having problems regulating her blood sugar.  The court rejected the plaintiff’s argument, noting that the changes in blood sugar were not a “serious health condition” and no evidence established “that he was needed to provide physical or psychological care for [his mother] as a result of her diabetes,” i.e., that the leave was medically necessary.

Another absence occurred on a day his mother had a medical appointment at 12:30 p.m. The plaintiff had an approved FMLA intermittent leave certification to transport his mother to and from doctors’ appointments.  His shift began at 6:30 a.m. The company had told him that he must report to work before and after the appointments, if possible.   On the day of the appointment, the employee did not report to work at all and explained that he made breakfast for his mother and  dressed her for the appointment. The court rejected the plaitiff’s argument that the conduct before transporting his mother to the appointment was “caring for” her, noting that his mother was able to dress herself and that plaintiff did not establish that it was medically necessary for him to make her breakfast.

“Who cares” and who does not is going to be decided on a case by case basis. In these two cases, the plaintiffs were unable to connect their assistance to their mothers’ serious health conditions. Other plaintiffs, in other circumstances, may be able to do so.

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EEOC Reports Record Number of Discrimination Charges; ADA Charges Are Fastest Growing Category

Posted on January 12, 2011 by Michael Soltis

The EEOC reported a record number of private sector discrimination charges filed in FY 2010, nearly reaching the 100,000 mark.  99,922 charges were filed in FY 2010, an increase of 6,645 (7%) from FY 2009. The most frequently filed charges were retaliation (36%), race discrimination (35.9%), and sex discrimination (29.1%).

Disability discrimination charges increased more compared to FY 2009 (17.3%) than any other type of charge. More than 25,000 ADA charges were filed, which was about 25% of the charge total. During FY 2010, the EEOC resolved 24,401 ADA charges. More than 62% of them were resolved with a “no reasonable cause” finding. The nearly 2,600 settlements of ADA charges resulted in $76.1 million in monetary benefits to the charging parties, which is an average of more than $29,000 per settlement.

201 charges were filed under GINA. Nearly 68% of those were resolved with a “no reasonable cause” finding.

With new regulations to implement the ADA Amendments Act anticipated this year, and new GINA regulations effective January 2011, it is quite likely that this upward trend in the number of charges relating to workplace medical issues will continue in FY 2011  

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Excusing Absences as a Reasonable Accommodation--Part 2

Posted on January 2, 2011 by Michael Soltis

 The "law" or "lore" requiring employers to accommodate employees by excusing absence has reshaped employer attendance and productivity expectations.  Some say the law, as interpreted by the Equal Employment Opportunity Commission, goes too far and creates an elusive and unworkable standard for managing employee attendance and productivity.　

To assist our clients and contacts in separating "law" from "lore" when analyzing and making these accommodation decisions, we have prepared a two part Special Report on excusing absence as a reasonable accommodation under the ADA. Part 1, published in May 2010, dealt with "blocks of leave. and can be found here. We recently published Part 2, which deals with the unpredictable "day here, day there" absences. As you will see from the discussion in Part 2, the cases involving　 unpredictable "day here, day there" absences are more favorable to employers than the "leave limits" cases we discussed in Part 1.

We received many positive comments about Part 1. We look forward to your comments on Part 2.

 

 

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Breaks for Expressing Breast Milk Not FMLA Time

Posted on January 1, 2011 by Michael Soltis

 Buried in the voluminous Health Care Reform Act is a requirement that employers provide reasonable break times and an appropriate place for nursing mothers to express breast milk for one year after the child’s birth.

On December 21, 2010, the U.S. Department of Labor published a request for comment concerning the implementation of this requirement and its preliminary interpretation of it.  Responding to “several inquiries” concerning the relationship of the break time provision to the FMLA, the DOL stated that it “does not believe that breaks to express breast milk can properly be considered to be FMLA leave or counted against an employee’s FMLA leave entitlement.” Under the FMLA, an employee may take time off to “care for” a newborn, which the FMLA regulations refer to as “bonding time.” In its recent notice, the DOL explained that it “does not consider expressing milk at work to constitute bonding with or caring for a newborn child.”  

The DOL also stated that if an employer treats employees who take breaks to express breast milk differently than employees who take breaks for other personal reasons, the nursing employee may have a claim for disparate treatment under Title VII. The DOL also stated that if an employer terminates a nursing mother employee because she takes breaks to express milk, the DOL may pursue such a claim on behalf of the employee.

In addition to addressing the interaction between the break time requirement and the FMLA, the DOL’s recent notice also discusses when such breaks must be paid, the length and frequency of “reasonable” break times, the type of place employers must provide, and the nature and scope of the undue hardship exemption.

To provide employees and employers with additonal information concerning workplace breastfeeding programs, the DOL has launched a new website on this specific topic.

Comments on the DOL’s preliminary interpretations of the break time and place requirement must be received by the DOL no later than February 22, 2011.

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