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New DOL FMLA Branch Chief: Expect Even More On-Site FMLA Investigations and Focus on Systemic FMLA Compliance Issues

This past December, the Department of Labor quietly turned its FMLA enforcement over to a new leader. After the retirement of FMLA Branch Chief Diane Dawson, who led the DOL’s FMLA enforcement for several years, the DOL turned to longtime DOL FMLA policy guru Helen Applewhaite to head up the agency’s FMLA efforts.

Fitness-for-Duty Exam Permitted under Federal FMLA after Employee Restored to Job, California Court Rules

An employer did not violate the federal Family and Medical Leave Act by requiring an employee to undergo a fitness-for-duty evaluation after it had restored her to her position following a medical leave of absence for psychological issues, the California Court of Appeal has ruled. White v. County of Los Angeles, No. B243471 (Cal. Ct. App. Apr. 15, 2014). Reversing a permanent injunction prohibiting the employer from requiring the evaluation, the Court noted the request for an evaluation was appropriate, given the employee’s erratic conduct prior to her leave and the requirement that she carry a weapon as part of her job.

FMLA FAQ: Can an Employer Force an Employee on FMLA Leave When the Employee Wants to Continue to Work?

Q: This week, one of our employees professed her love to one of her co-workers (who is married) and announced to everyone that they had been dating. The problem is — it’s not true.

EEOC Commissioner Gives Insight into Handling Employee Leaves of Absence After FMLA is Exhausted

Last week, I had the pleasure of co-presenting with EEOC Commissioner Chai Feldblum on the topic of “leave” as a reasonable accommodation under the ADA. Our presentation was part of an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access BNA’s coverage of our presentation here. Naturally, Cmmr. Feldblum and I aren’t going to agree on everything when it comes to the ADA, since I represent employers and Cmmr. Feldblum is a sitting EEOC Commissioner. But when it comes to employer compliance with the ADA, we found much to agree on during this session.

Depressed employee's vacation leave request did not qualify for FMLA protection.

The vacation request of an employee suffering from depression and anxiety did not qualify as a request for leave under the Family and Medical Leave Act (FMLA), said the 11th U.S. Circuit Court of Appeals. While the request might prove medically beneficial, it did not qualify for FMLA protection, as it did not include any period of actual incapacity. Hurley v. Kent of Naples, Inc., 11th Cir., No. 13-10298, March 20, 2014.

"Potential" Qualification for FMLA Leave Doesn't Cut It, Appeals Court Says

A recent court decision limits the pool of employees who may assert claims under the Family and Medical Leave Act. In Hurley v. Kent of Naples, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that the "potent protection" of the FMLA does not apply to everybody who potentially qualifies for FMLA leave but only to those who actually qualify for FMLA leave.

Employer Can Fire Worker Who Refused FMLA Leave for Violating No-Show Policy, Federal Court Rules

An employer did not violate the federal Family and Medical Leave Act for terminating an employee for violating its no-show, no-call policy, where the employee elected not to take protected FMLA leave, even though the reason for the employee’s need for time off would have been covered under the statute, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled. Escriba v. Foster Poultry Farms, Inc., Nos. 11-17608 & 12-15320 (9th Cir. Feb. 25, 2014). Affirming a judgment in favor of the employer on the employee’s claim for interference with her FMLA rights and rights under California law, the Court also ruled the district court did not err in admitting evidence about the plaintiff’s prior FMLA leave.

Employees Can't Take FMLA Leave for "Potential" Absences in the Future

Did you ever have an employee tell you that he has medical condition "x," which will require time off at some point in the future? Normally, you tactfully tell him to come back when he actually needs time off, correct?

Vegas Trip Considered Legitimate FMLA Leave

Most human resources personnel know that under the Family Medical Leave Act, covered employers must give eligible employees twelve workweeks off in a twelve-month period “to care for” a spouse, child, or parent with a serious health condition. However, what happens when caring for a terminally ill parent, physically and psychologically, brings the employee to Vegas for vacation? Recently, the Seventh Circuit Court held this constitutes “caring for” the family member and is a proper use of the leave.

FMLA FAQ: Can an Employer Designate FMLA Leave When an Employee Refuses to Provide Medical Certification?

I received a ton of feedback last week in response to my post about whether an employee can decline FMLA leave even though the absence qualifies under the Act.