Tag Archives: FMLA

“You Can’t Fire Me, I Just Came Back From FMLA Leave.”

Contrary to apparent popular belief, employees who have recently taken leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons unrelated to their FMLA leave.  Establishing a non-retaliatory termination in these circumstances can be challenging, however.  The timing of the termination alone can “look” retaliatory, and even a well thought … Continue Reading

Is Crying at Work Sufficient Notice of an FMLA Covered Condition?

It is well established that an employee need not specifically request leave under the Family and Medical Leave Act (“FMLA”) in order to benefit from the Act’s protections.  Rather, the law requires the employer to take action to notify an employee of FMLA rights when the employer acquires knowledge that an employee’s leave may be … Continue Reading

What Should I Tell Employees on Leave About Their FMLA Usage? Everything!

When it comes to FMLA leave administration, “don’t sweat the details” is rarely a wise axiom.  Details matter.  A lot.  A recent decision by an Illinois federal court reinforces that lesson.  In March 2015, Amanda Dusik contacted her employer, Lutheran Child and Family Services (LCFS), to request time off for knee surgery.  She explained that, … Continue Reading

Are You Coming In Today? An FMLA Intermittent Leave Toolkit

            Intermittent leave continues to present some of the most exasperating FMLA issues. In March, the San Diego-based Disability Management Employer Coalition (DMEC) issued a white paper showing the findings of its annual 2016 Employer Leave Management Survey, which involved 1,132 U.S. employers of all sizes. According to the Society for Human Resource Management (SHRM), … Continue Reading

Fear of Failure – Terminating Employees with Extensive FMLA and non-FMLA Absences

It’s a scenario that frustrates many employers.  An employee with extensive intermittent FMLA absences, possibly including absences for different covered reasons, is also absent for many unspecified or unprotected reasons which lead to progressive discipline.  The employee’s absences eventually reach the point of warranting termination and the employee does not provide additional medical information to … Continue Reading

Employers Beware: Intermittent FMLA Absences Not Subject to “Proof of Need”

On January 27, 2017, the Eleventh Circuit Court of Appeals issued a decision that provides a cautionary tale to employers about seeking documentation from an employee on intermittent FMLA leave. In Diamond v. Hospice of Florida Keys, Inc., Case No. 15-15716 (11th Circuit, Jan. 27, 217), the Court held that an employer’s request for “proof … Continue Reading

Beware What You Share – Disclosure of Medical Information Results in Retaliation and Interference Claims

A United States District Court in Florida thwarted an employer’s attempt to toss the FMLA claims of an employee who sued after his medical condition was disclosed to co-workers who subsequently made fun of him.  The employee requested FMLA leave after he developed a chronic condition with his genito-urinary system.  The leave request was approved … Continue Reading

A Cautionary Tale: How Sudden Changes to Intermittent FMLA Can Cost You

A January 9 decision by the Seventh Circuit Court of Appeals serves as a vivid reminder that employers must tread with great caution when managing intermittent leave under the Family and Medical Leave Act. As the ruling in Wink v. Miller Compressing Company highlights, making abrupt changes in leave accommodations or providing misinformation about leave … Continue Reading

Employee Cannot Maintain Collective Action for Employer’s Failure to Post FMLA Notice

We all know that the FMLA is fraught with pitfalls that can lead to costly mistakes. But a collective action for simply failing to post a notice?  On January 6, 2017 a U.S. District Court in Maryland rejected such an attempt.  In Antoine v. Amick Farms, LLC the plaintiffs claim that a class of employees … Continue Reading

Does Calling Someone an “Injury Compensation Specialist” Prove FMLA Retaliation?

Perhaps not, according to the First Circuit Court of Appeals. Not all retaliation is the same, the court reminds us in its December 14, 2016 decision in Chase v. U.S. Postal Service. Evidence that a supervisor retaliated because of an employee’s workers’ compensation claim does not itself prove the supervisor also retaliated because the employee took concurrent … Continue Reading

Is Santa Claus a Key Employee?

At North Pole Enterprises, the company’s entire existence is dependent upon a single delivery on the night of December 24. On December 23, Santa Claus, the only licensed delivery driver at North Pole Enterprises, injures his back while loading packages in his “truck.”  Later that day, Mr. Claus contacts the Human Resources Department at North … Continue Reading

Department of Labor to Seek Feedback Regarding the Family and Medical Leave Act

The U.S. Department of Labor (DOL) is looking to collect data from employers and employees regarding their respective “need for” and “experience with” the Family and Medical Leave Act (FMLA).  The data collection period is expected to occur in 2017 and 2018.  From employees, the survey will seek information regarding “use of leave, need for … Continue Reading

Be Wary of Potential FMLA Violation before Terminating an Employee for Failure to Meet Performance Standards During Intermittent Leave

It is well established that the FMLA does not require an employer to reduce its performance expectations for an employee who is taking leave intermittently or on a reduced schedule.  Additionally, during the time the employee is at work, the employee must be capable of continuing to perform the essential functions of the job.  However, … Continue Reading

Enhanced FMLA Fitness-for-Duty Certification Provides Comfort to Employers

An employee’s return to work following an extended FMLA leave for a serious health condition of the employee often creates concerns on the part of the employer. In these situations, employers frequently question whether the employee is really able to perform the essential functions of the job and whether returning the employee to work may … Continue Reading

Court Punts on Expanding FMLA Coverage to Absences Not Covered by FMLA

"Approved." Due to an email containing that single word, the Eleventh Circuit Court of Appeals found itself addressing an FMLA issue that is somewhat of a paradox–whether to expand FMLA coverage to absences not covered by the FMLA…when an employer has approved FMLA leave for the uncovered absence.  Put in a legal framework, the issue … Continue Reading

Who Cares? The Mom of an Adult Daughter with a Brain Aneurysm Cares

In FMLA "caring for" cases, there is usually no dispute that the cared-for relative has a serious health condition. We have posted here, here and here about such cases. But in Mezu v. Morgan State University, (D.Md July 29, 2013), that was precisely the issue. The plaintiff claimed her employer interfered with her FMLA rights … Continue Reading

No FMLA Interference Where Employee Failed to Follow His Employer’s Customary Notice and Procedural Requirements

An employee who did not follow his employer’s call-in requirements under its attendance policy or provide an appropriate medical certification supporting his need for leave under the FMLA has failed to establish a claim for interference with his FMLA rights, according to the Sixth Circuit. Srouder, et al. v. Dana Light Axle Mfg, LLC,, (6th Cir. … Continue Reading

Administering FMLA Leave in the Wake of Windsor

The Supreme Court’s decision in U.S. v. Windsor adds to employer obligations under the FMLA by expanding the group of individuals who may be a “spouse” for FMLA purposes.  At issue in Windsor was whether Section 3 of DOMA violated the Fifth Amendment’s Equal Protection Clause as applied to the Federal Government.  Section 3 of … Continue Reading

Funeral Fraud Dooms Novelist’s FMLA Retaliation Claim

Relying on the employer’s “honest belief” that the plaintiff had engaged in fraudulent conduct, the U.S. Sixth Circuit Court of Appeals rejected the FMLA retaliation claim of an employee who had requested leave to attend the funeral of her granddaughter, when it was actually her step-granddaughter who had died. The collective bargaining agreement governing the plaintiff’s … Continue Reading

DOMA Case Broadens FMLA Definition of “Spouse”….At Least to Some Extent

The Supreme Court’s Defense of Marriage Act decision expands employer obligations under the FMLA, at least in the states that recognize same-sex marriages.  The Court held that Section 3 of DOMA, which states that the meaning of “spouse” in any federal law or regulation “refers only to a person of the opposite sex who is … Continue Reading

“I am Resigning” is Not a Request for FMLA Leave

Is a resignation a request for FMLA  leave? Of course not most would say, but it  depends on whether you ascribe to words their plain meanings.  One of the more well-known  exchanges concerning the meaning of words occurred between Humpty Dumpty and Alice in "Through the Looking Glass." “When I use a word…‘it means just … Continue Reading
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