Thanks to those who attended my webinar last week with EEOC Regional Attorney John Hendrickson on “Examining the Use of ‘Leave’ as a Reasonable Accommodation Under the ADA.” If you missed the program, you can access the webinar and materials here. As the survey feedback indicated, it was a great opportunity to discuss issues specifically relating to leaves of absence under the Family and Medical Leave Act and the Americans with Disabilities Act.
Employers often complain that they see an uptick in the use of sick leave and FMLA leave around the holidays. In the case of Southwest Airlines, however, one employee clearly took FMLA misuse a bit too far.
For several weeks now, attorneys and legal academics across the country have dissected the U.S. Supreme Court’s Wal-Mart v. Dukes (pdf) decision, which shut the door to a 1.5 million class of current and former female Wal-Mart employees who are claiming that they were denied pay increases and promotions because of their gender. In striking down class certification, the Supremes held that there was no commonality among the member of the class, that is, no “glue” that tied all of their discrimination claims together.
We terminated an employee who has been reinstated by an arbitrator with full back pay. Now, he has requested FMLA leave. Are we obligated to provide leave even though he has not worked 1,250 hours in the previous 12 months?
arlier this month, Sen. Jon Tester (D-Mont.) introduced the Parental Bereavement Act (S. 1358), which would expand the Family and Medical Leave Act to provide job-protected leave due to the death of an employee’s son or daughter. In a press release, Sen. Tester said he introduced the bill because the “last thing [parents] should be worrying about is whether theyâ€™ll lose their jobs as they deal with life-changing loss.” The Act would allow leave “because of the death of a son or daughter,” and it assumes leave would be taken in one block. Like bonding leave, bereavement leave could be taken intermittently only if the employer agrees. Like the FMLA itself, the bill would apply only to employers of 50 or more employees.
Earlier this week, the folks at the Texas Employment Law Update highlighted a case before the U.S. Supreme Court in which the high court will consider whether law enforcement’s placement of a GPS devise on a suspect’s vehicle without a warrant constitutes an unlawful search in violation of the Fourth Amendment. This case led the authors to wonder aloud whether an employer might surrepticiously use GPS to track an employee who is suspected of abusing leave under the Family and Medical Leave Act.
Share LinkOn June 27, 2011, the United States Supreme Court agreed to review an FMLA case in which the Court will decide whether a State can be sued under the Family and Medical Leave Act where the employee is seeking leave due to his or her own serious health condition. In lawyer-speak, the question specifically involves “whether Congress constitutionally abrogated statesâ€™ 11th Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.” Although the issue may at first blush appear to be rather dry and inconsequential to the FMLA practitioner, the decision clearly will impact whether a State can be sued under the FMLA where the issue involves one of “self-care” under the Act.
As a father of three, I tend to take interest in “feel good” stories about working parents. However, in a recent ABA Journal article, an article about a working dad caught my attention for a far different reason. The article highlighted Ariel Ayanna, who recently filed suit against his employer claiming he was terminated after taking FMLA leave following the birth of his son. Ayanna v. Dechert LLP (pdf).
One the biggest FMLA headaches for employers is when an employee fails or refuses to provide information to cure insufficient or incomplete medical certification. When the employer does not have the information to determine whether an absence qualifies as FMLA leave, it is left with a true dilemma: Try and obtain permission to talk to the health care provider? Delay or deny the leave and face possible litigation? Or simply approve the leave and go on with your day (after all, it’s easier to avoid the confrontation, right)?
Employees should think twice before setting off on a Cancun vacation while out on FMLA leave. In an FMLA decision that smacks of pure common sense, a federal court has upheld an employer’s reasonable work rules that restricted an employee’s travel outside the immediate vicinity while on FMLA leave.
Natural disasters like the kind we recently have witnessed in the flood-ravaged areas of the southern United States raise a host of issues for employers. Some wonder whether they are required to pay their employees during suspended operations; others are unsure whether and to what extent health benefits should be offered.
Last week, my colleagues, Bill Pokorny and Josh Meeuwse, and I conducted a complimentary Webinar for our clients and friends of the firm regarding the ADA Amendments Act and its final regulations, which take effect May 24, 2011.
Here’s a shout out to all the dads out there who have a leg up on major league baseball players in at least one area — paternity leave.
Last month, the Supreme Court ruled in Staub v. Proctor Hospital(pdf) that an employer in an employment discrimination case can be liable for the discriminatory animus of an employee who influences, but does not make, the ultimate employment decision at issue. Known as the â€œcatâ€™s pawâ€ theory, it already is having an impact on claims brought under the Family and Medical Leave Act.
We have requested a medical certification from an employee who is seeking FMLA leave. We have our own certification form, and gave the employee a copy. The employee came back with a form letter from the doctor’s office stating that they charge a fee for filling out FMLA certification forms, and a note from the doctor stating that the employee was injured and needed FMLA leave. Do we have to accept the note in lieu of our form?