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Total Articles: 20

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 denial of FMLA leave was justified based on the plaintiff’s failure to provide sufficient medical documentation justifying his wife’s “serious health condition.” Davidson v. Evergreen Park Community High School District 231, No. 15 C 0039, 2017 U.S. LEXIS 77724 (N.D. Ill. May 23, 2017).

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.

Can an Employee Decline FMLA Leave Simply by Checking a Box on a Form?

Do you require your employees to fill out a form or an application to request leave under the Family and Medical Leave Act? If not, are you thinking of changing to such an approach? Either way, pay attention to this story about Carrie, whose particular leave situation is instructive for employers.

DOL Issues Updated FMLA Notices and Forms Addressing GINA "Safe Harbor" Language Requirements

The U.S. Department of Labor (DOL) recently issued new versions of the agency's template Family and Medical Leave Act (FMLA) notices and certification forms, which have been approved for use for the next three years.

How Fowl! Is An Employee's Text and His Girlfriend's Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast...

This one just smells fowl. Delbert (not sure if he goes by Del or Bert, so I’ll just call him Delbert) decided not to show up for work at Tyson Fresh Meats on December 28. Instead, he asked his girlfriend, who also worked for Tyson, to report his absence for him. She obliged and told Delbert’s supervisor that he “would be absent or late” on December 28. On that same day, Delbert texted his supervisor, stating that he was “having health issues, would be out a few days, and needed to see a doctor.”

DOL Publishes New FMLA Forms -- Good Through May 2018

Those sneaky little rascals! While the rest of us were enjoying our Memorial Day holiday, those crazy kids over at the Department of Labor were still working away. This time, they were busy posting the new model FMLA notices and medical certification forms. Expiration: May 31, 2018!

Employer's Lack of FMLA Compliance in Handling FMLA Leave Request is a Lesson for the Rest of Us

Want a glimpse into a world where an employer fails to maintain a legally compliant leave management process? Let me warn you — what you are about to read is not pretty and not for the faint of heart.

If You Can’t Prove Your FMLA Notice was Received It May be Ineffective

One would think that giving an employee notice of his or her rights under the Family Medical Leave Act (“FMLA”) should be a rather uncomplicated process. Since every communication these days tends to be via email, when an employee is out, you could just send a quick e-mail asking for confirmation of the ongoing need for leave, right?

Court Determines that Employer's FMLA Notice Sent by Email is Not Reliable (Sending Employer World into Tizzy)

We have a mini-FMLA crisis on our hands this week, and the courts are to blame. This issue involves the FMLA notices that employers send to employees, but more importantly, the delivery route in which they send them.

A Game-Changing Decision? Sending FMLA Notices to Employees by U.S. Mail May Not Cut It Anymore

With all the FMLA paperwork that a leave administrator has to provide an employee during the FMLA process, you’d wonder whether you’re attending a real estate closing. All these documents — whether it’s the Notice of Eligibility, medical certification, or the Designation Notice — typically get sent by good old fashioned snail mail, delivered by your friendly neighborhood U.S. postal worker.

Employer's Improper and Untimely FMLA Notices Didn't Harm Employee, So No FMLA Violation

Here’s a shout out to all you employers out there who forget to send your employees the proper FMLA notices when they seek leave for a reason covered by the FMLA. Occasionally, the courts have your back, despite your lack of attention to detail.

Employer's Improper and Untimely FMLA Notices Didn't Harm Employee, So No FMLA Violation

Here’s a shout out to all you employers out there who forget to send your employees the proper FMLA notices when they seek leave for a reason covered by the FMLA. Occasionally, the courts have your back, despite your lack of attention to detail.

The Importance of Providing Individual FMLA Notices to Employees

The Department of Labor was serious when it required employers beginning in 2009 to provide individual FMLA notices to employees regarding their eligibility and rights (Notice of Eligibility and Rights & Responsibilities) and whether FMLA applies (Designation Notice).

The Seventh Circuit Examines What Constitutes Notice of Employee Eligibility for FMLA Leave

Employers often find that administering Family and Medical Leave Act (FMLA) policies can prove to be one of the more challenging aspects of personnel management, particularly because employees are required to place their employer on notice of only the probable basis for FMLA leave to qualify for it. Employees do not need to specifically refer to the FMLA, as long as they have alerted their employer to the seriousness of the health condition. A general reference to being “sick” is not enough, but providing specifics about more serious medical concerns is often sufficient to warn the employer that the employee may qualify for FMLA leave. In two companion cases, the Seventh Circuit considered whether employees provided sufficient notice to their respective employers of their need for FMLA leave.

Employee's signs of severe emotional distress and anxiety may constitute a "report" of the need for FMLA leave.

To state a claim of interference under the Family and Medical Leave Act (FMLA), an employee must show that he or she has put the employer on notice that an absence may be covered by the FMLA. This ordinarily means that at least verbal notice must be provided to the employer within one or two business days of the point at which the need for leave becomes known to the employee. Recently, the 8th U.S. Circuit Court of Appeals reversed summary judgment in an employer’s favor, holding that an employee’s signs of severe distress and anxiety were sufficient to inform her employer of the possible need for medical leave. Clinkscale v. St. Therese of Hope, 8th Cir., No. 12-1223, November 13, 2012.

Failing to Follow Call-in Procedures Dooms Employee's FMLA Claim

Later this week, I am conducting FMLA training for management employees at one of our clients. The training will focus on how the employer can utilize its own current personnel policies to properly administer FMLA leave and combat FMLA abuse. During this training, I am going to tell them about Ritenour v. State of Tennessee. Why? Because it's a great example of how an employer properly applied its call-in policy to discipline and ultimately terminate an employee who chose to ignore her obligation to timely report her absences.

When Has an Employee Provided Sufficient Notice of the Need for FMLA Leave?

Often enough, HR professionals tell me that they have a difficult time recognizing when an employee has provided adequate notice of the need for leave under the Family and Medical Leave Act. A recent court case reminds us that: 1) the threshold for requesting leave is not that high; and 2) employers have an obligation to ask questions to determine whether FMLA leave may be at issue.

Impaired employee may be excused from heightened reporting requirement for FMLA leave.

The 5th U.S. Circuit Court of Appeal has held that an impaired individual may not be required to comply directly with her employer’s heightened reporting requirements associated with FMLA leave.

The Importance of Clear, Accurate Notices

Two recent federal appeals court decisions highlight the importance of providing employees with clear, accurate information about their FMLA rights. First, the U.S. Court of Appeals for the Eighth Circuit recently held in Kobus v. The College of St. Scholastica, Inc. that a painter employed by the college could not prevail on his FMLA claims because he failed to return a completed medical certification form confirming that he had a serious medical condition. The court focused on the fact that the college's policies and the plaintiff's supervisor clearly advised the plaintiff of the certification requirement.

Calling In Sick Without Providing Additional Information is Not Sufficient to Trigger FMLA.

Under the Family and Medical Leave Act (FMLA), eligible employees are entitled to up to 12 weeks of unpaid leave during a 12-month period. The FMLA specifically prohibits employers from interfering with an employee’s attempt to exercise his or her rights under that Act. In order to exercise those rights on the basis of an employee’s own “serious medical condition,” the employee must provide notice to the employer of the seriousness of the health condition that forms the basis of the leave request. Recently, the 7th U.S. Circuit Court of Appeals found that calling in sick, without providing additional information, does not provide sufficient notice of a “serious health condition” under the FMLA.
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