An employee’s taking a morning off to make an unannounced visit to his physician’s office to get a prescription refill and confirm that referral paperwork for an appointment that afternoon had been completed was not protected by the FMLA because the visit was not “treatment” for a serious health condition, the Seventh Circuit has held.
Oktoberfest Jaunt Leads to Disability Fraud Firing
By Jackson Lewis P.C. on
Posted in FMLA
The Sixth Circuit has affirmed summary judgment for an employer who terminated an employee on FMLA leave based on its “honest belief” that the employee had “over-reported” his restrictions to avoid doing light duty work. Seeger v. Cincinnati Bell Telephone, (6th Cir. May 8, 2012).
Under the labor contract, an employee on otherwise unpaid…
Hunter Tracked Into Woods; FMLA Claim Survives
By Jackson Lewis P.C. on
A man walks into the woods with a gun and sits in a comfortable chair already set up in a blind. An hour earlier that Monday, 2 ½ hours into his shift, he told his employer he was in severe pain and could not perform his work duties. Because the employee’s FMLA requests tended to…
U.S. Supreme Court Sharply Divided On FMLA Application to States: Two Decisions, Ten Opinions, One Constitutional Thicket
By Jackson Lewis P.C. on
Posted in FMLA
On the issue of whether states, as employers, may be liable for damages for violating the FMLA, it is fair to say that the U.S. Supreme Court lacks a consensus. On March 20, 2012, the Court said states cannot be sued for damages for violating the self-care provisions of the FMLA, i.e., those provisions dealing with an…
Flexible Work Schedule for All: Greater Challenge or Greater Profits?
By Jackson Lewis P.C. on
Employers challenged with scheduling modifications due to reasonable accommodation requests under the ADA, intermittent leave requests under the FMLA, and paid sick leave requests in some jurisdictions, but looking to increase their profitability, might want to keep an eye on H.R. 4106, the Working Families Flexibility Act (WFFA).
Introduced in the House of Representatives on…
Who Cares? A Son Deciding Whether to Remove His Mother From Life Support Cares
By Jackson Lewis P.C. on
Posted in FMLA
Courts have struggled to determine who “cares for” a covered family member under the FMLA and who seeks leave for compassionate reasons which fall short of the “caring for requirement. See, e.g., Who Cares, Where? ; Who Cares? And Who Merely Assists Under the FMLA? The Sixth Circuit has held that an employee who sought…
Terminated Employee Who Made Pre-Eligibility Request for Post-Eligibility Leave May Pursue FMLA Interference and Retaliation Claims; Court Rejects FMLA Loophole
By Jackson Lewis P.C. on
Posted in FMLA
A terminated employee who had made a “pre-eligibility request” for a ”post-eligibility leave” can pursue FMLA interference and retaliation claims, according to the United States Court of Appeals for the Eleventh Circuit. The Court reversed the district court decision, which had dismissed both claims because the plaintiff was not FMLA-eligible at the time of her termination. …
FMLA Claim Must Be Arbitrated Due to Union Contract Waiver of Judicial Forum
By Jackson Lewis P.C. on
Posted in FMLA
An employee must arbitrate his FMLA claim where the labor contract governing his employment waived his right to pursue employment claims in court, according to the United States Court of Appeals for the Eighth Circuit. Thompson v. Air Transport Int’l LLC (12/28/11). The Court relied on the Supreme Court’s 2009 decision in 14 Penn Plaza …
Exacerbation, Causation and Retaliation under the FMLA
By Jackson Lewis P.C. on
Posted in FMLA
Whether a supervisor mistreated the plaintiff after he returned from his second leave of absence, causing him to need a third leave, is irrelevant to his FMLA retaliation claim because “[e]xacerbation is not a valid theory of liability under the FMLA” according to the Seventh Circuit. Breneisen, Jr. and Lineweaver v. Motorola, Inc. (7th Cir.
Second Circuit Applies Title VII Retaliation Standard to FMLA Retaliation Claims
By Jackson Lewis P.C. on
Posted in FMLA
Add the Second Circuit to the chorus of circuits to apply the Supreme Court’s standard for Title VII retaliation claims to FMLA retaliation claims as well. In its 2006 Burlington Northern & Santa Fe Railroad Co v. White decision, the Supreme Court expanded the definition of “materially adverse employment action” for purposes of Title VII retaliation.