Archives: FMLA

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What Am I Doing Wrong?? Common FMLA Mistakes

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eleventh in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration. Not properly considering when a medical recertification can, and should, be requested when an employee … Continue Reading

New Mexico Court Rules Employee Is Entitled To Nationwide Discovery in FMLA Case

On October 10, 2017, Judge Ritter issued the Memorandum Opinion and Order which granted a former employee’s Motion to Compel and held that the former employee was entitled to information from the company’s nationwide offices relating to other employees fired under the company’s 100% healed policy and other FMLA or ADA complaints. Matthew Donlin (“Donlin”) worked as a general manager … Continue Reading

Can I Get Some Clarification on That Certification? Maybe Not … Differences Between FMLA and CFRA

Under the Family and Medical Leave Act (“FMLA”), an employer is permitted to contact an employee’s healthcare provider, with the employee’s permission, to clarify a medical certification submitted in support of the employee’s request for a leave of absence. Under the FMLA, “clarify” means to understand the handwriting on the certification or the meaning of … Continue Reading

FMLA Leave Does Not Shield An Employee From Disciplinary Action Unrelated To The Leave

The Court of Appeals of North Carolina recently held that an employer didn’t interfere with an employee’s rights under the Family Medical Leave Act (“FMLA”) or retaliate against her by contacting her to schedule her disciplinary hearing while she was on FMLA leave. Jennings v. Univ. of N.C., N.C. Ct. App., No. COA16-1031, 7/5/17. Crystal … Continue Reading

Documented Performance Issues and Inadequate Notice of Need for Leave Sink Employee’s FMLA Claims

Granting summary judgment to an employer on Family and Medical Leave Act claims asserted by a former employee, an Illinois district court held that: (1) the employee had failed to demonstrate his firing had any causal relationship to his prior FMLA leave (or any potential future need for FMLA leave); and (2) the employer’s initial … Continue Reading

What Am I Doing Wrong?? Common FMLA Mistakes

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the ninth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration. Assuming an adult son or daughter is not a covered family member. Employers may … Continue Reading

“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 Am I Doing Wrong?? Common FMLA Mistakes.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eighth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration. Not properly seeking FMLA recertification when there is a change in circumstances.  Generally, an employer may request … Continue Reading

A Primer on Substituting Paid Leave for Unpaid Disability Leave Under Federal and California Law

Among the many questions California employers face when navigating the ins and outs of various disability leave laws is under what circumstances an employee may choose or be required to utilize paid time off for an otherwise unpaid leave of absence. When dealing with these issues, it is important to consider some nuanced differences between … 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

What Am I Doing Wrong?? Common FMLA Mistakes.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the sixth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration. Inconsistently applying a return to work fitness-for-duty certification requirement. When an employee takes FMLA … Continue Reading

What Am I Doing Wrong? Common FMLA Mistakes – the California Edition

“What did I do wrong” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  Employers with operations in California need to worry about both the FMLA and the California Family Rights Act (CFRA).  This is the next in our monthly series highlighting some of the more common mistakes employers can … 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

What Am I Doing Wrong?? Common FMLA Mistakes.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the fifth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration. Not providing an employee with a sufficient Notice of Eligibility and Rights & Responsibilities. … Continue Reading

Third Circuit Says “Last Call” for Employee Terminated After Caught Drinking While on FMLA “Bed Rest”

On January 31, 2017, the United States Court of Appeals for the Third Circuit joined the Seventh, Eighth and Tenth Circuits in holding that an employer’s honest belief that its employee was misusing FMLA leave is enough to defeat an FMLA retaliation claim. The court’s opinion in Capps v. Mondelez Global, LLC also serves as … Continue Reading

An Employee Fails to Return from Leave As Originally Scheduled—Has That Employee “Voluntarily Resigned”?

What are employers to do if an employee has not provided a doctor’s note to continue his or her leave and the initial end date for that leave has passed? When can employers deem such an employee to have “voluntarily resigned”?  Leticia Bareno v. San Diego Community College District reminds employers that they must scrutinize … Continue Reading
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