Total Articles: 11
Employee Whose Boss Gave Him Heartburn Has No Remedy Under the FMLA
The Family and Medical Leave Act ("FMLA") not only confers upon employees certain substantive rights, it also protects employees from being discriminated against and/or retaliated against for exercising their substantive FMLA rights. It is clear in this regard that if an employee takes FMLA leave, his/her employer may not use that exercise of rights as a negative factor when taking employment actions in connection with the employee. It is important to note that the scope of the FMLA's anti-retaliation protections is not limited to concrete tangible employment actions, such as discipline, demotion, and discharge; to the contrary, any adverse action that would dissuade a reasonable employee from exercising his or her rights under the FMLA can support a retaliation claim.
Employer-induced Heartburn Not Recoverable Under FMLA (pdf).
The Family and Medical Leave Act not only confers upon employees certain substantive rights, it also protects employees from being discriminated against and/or retaliated against for exercising their substantive FMLA rights. It is clear in this regard that if an employee takes FMLA leave, his/her employer may not use that exercise of rights as a negative factor when taking employment actions in connection with the employee. It is important to note that the scope of the FMLA's anti-retaliation protections is not limited to concrete tangible employment actions, such as discipline, demotion, and discharge; to the contrary, any adverse action that would dissuade a reasonable employee from exercising his or her rights under the FMLA can support a retaliation claim. Harassment of an employee for taking FMLA leave falls squarely within the scope of the proscription against retaliation under the FMLA, and federal courts have most certainly entered judgments and punitive damage awards against employers where the evidence revealed that the employer engaged in harassment of an employee because of the employee's use of FMLA leave. Employers are well-advised to ensure that their managerial/supervisory-level personnel are able to compartmentalize and quell any ill will or animus they might harbor against an employee based on that employee's lawful and proper exercise of rights under the FMLA. The United States Court of Appeals for the Seventh Circuit confronted a case, Breneisen v. Motorola, Inc., in which the Court had found that the plaintiff had arguably been subjected to actionable retaliation and confronted a novel issue regarding the scope of remedies available under the FMLA.
Court Rejects FMLA Claim By Employee Who Felt "Fatigue-Ish" But Didn't Call In
In a refreshing decision, a federal district court in Minnesota recently rejected an FMLA lawsuit by an employee who said he needed to be absent because he was "feeling ill ... tired, lethargic, fatigue-ish," and "needed a few days to recuperate," but who then failed to follow his employer's absence reporting policy
FMLA FAQ - Is a cold or the flu a serious health condition?
Q: Can an employee take FMLA leave due to a cold or the flu?
FMLA FAQ - Leave for cosmetic surgery.
An employee has advised that she needs to take leave for cosmetic surgery. Do I have to grant the leave?
Evidence: Medical Evidence and Lay Testimony Sufficient to Prove FMLA Claim (pdf).
The Third U.S. Circuit Court of Appeals, which covers Delaware,
recently decided an issue previously unresolved by the court. In doing
so, it held that a combination of medical evidence and lay testimony is
sufficient to show an employee was "incapacitated" as defined by the
Family and Medical Leave Act (FMLA). The decision overturned the
standard ¯ that an employee must present expert medical testimony
that she was incapacitated under the FMLA ¯ adopted by most district
courts in the Third Circuit.
FMLA Update: Who Decides Whether The Employee Is Sick Enough For FMLA Leave?
An employee may be entitled to a protected leave of absence under the FMLA when she has a serious “medical condition” during a “period of incapacity.” Who decides whether the employee is incapacitated? A doctor? The employee? A recent case titled Schaar v. Lehigh Valley Health Services, Inc. wrestled with this issue.
Third Circuit Says Lay Testimony Can Help to Establish “Serious Health Condition” Under FMLA.
The Family and Medical Leave Act (FMLA) entitles an eligible employee to 12 weeks of leave, but only if the employee can show that he or she suffers from a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” The Act defines a serious health condition as an illness or other condition that involves “continuing treatment by a health care provider.” The regulations related to the FMLA require a showing of at least three days of incapacitation plus treatment by a health care provider, in order to support a claim of serious health condition. However, those regulations do not require – or even mention – that expert medical evidence is necessary to prove those days of incapacitation, and courts have been left to determine the role that a doctor’s diagnosis plays in that proof. Recently, the 3d U.S. Circuit Court of Appeals held that a combination of personal and medical testimony regarding the illness of a medical practice receptionist was sufficient to raise a jury issue regarding whether that person suffered from a serious health condition sufficient to support a claim under the FMLA.
Appeals Court Holds That An Employee's Self-Diagnosis Can Establish Ongoing Medical Condition Under The FMLA.
Brace yourself for yet another twist in the ever-evolving standards governing an employee's leave under the Family Medical Leave Act (FMLA). On March 11, 2010, the U.S. Court of Appeals for the 3rd Circuit joined the 8th Circuit Court of Appeals in holding a combination of expert and lay testimony can establish that an employee was medically incapacitated for more than three days, thereby triggering FMLA protection.
Employee's back injury is not a "serious health condition" (pdf).
The federal appellate court with
jurisdiction over Kansas employers
recently dismissed a lawsuit brought
by an employee who claimed that his
termination violated the Family and
Medical Leave Act (FMLA). According
to the Tenth Circuit Court of Appeals,
an employee who has received a single
treatment for an injury does not satisfy
the FMLA’s “serious health condition”
requirement. Moreover, the court refused
to give employees an “indefinite
timeframe” within which to obtain a
second treatment.
The Family Medical Leave Act Does Not Automatically Deny Coverage To Claims Which Fail To Document Treatment.
Discusses Scamihorn v. General Truck Drivers, 2002 Daily Journal D.A.R. 2517 (9th Cir., Mar. 4, 2002), in which the court analyzes whether plaintiff's father's depression constituted a "Serious Health Condition" and whether plaintiff "cared for" his father.
