Header graphic for print
Employer Law Report

Category Archives: Leave Administration

Subscribe to Leave Administration RSS Feed

DOL has issued new FMLA forms

Posted in Leave Administration

If you are one of the many employers that uses the FMLA forms issued by the Department of Labor, be aware that the Department has issued new forms. You should begin using the new forms effective immediately. Here are links to all of the new forms:

FMLA Leave: sometimes, it is about putting the pieces together

Posted in Leave Administration

Finding that the circumstances surrounding the plaintiff’s initial absence from work and his doctor’s note were enough for a reasonable jury to find that his employer was on notice of a request for FMLA protections, the Sixth Circuit Court of Appeals reversed the district court’s decision granting summary judgment to the employer in Festerman v. County of Wayne, 14-1950 (6th Cir. 2015). The court also found that there was sufficient evidence to permit a reasonable jury to find that the plaintiff was constructively discharged in retaliation for seeking FMLA leave. As a result, the case was remanded back …

UPDATE: Same sex marriage rule for FMLA halted in only four states

Posted in Leave Administration

We reported in February on a Department of Labor (DOL) rule permitting same sex partners who are legally married to take FMLA leave to care for their spouse, regardless of whether they live in a state that recognizes same sex marriage (so long as they were legally married in a state that recognizes same sex marriage). The law was set to go into effect March 27, 2015. On March 26, 2015, however, a group of attorneys general from Texas, Nebraska, Arkansas, and Louisiana obtained a preliminary injunction that delayed the rule’s implementation until the court considers the full merits of …

DOL’s new rule puts same-sex couples on level footing under the FMLA

Posted in EEO, Leave Administration

On Monday, February 23, 2015, the Department of Labor issued a new rule providing FMLA leave benefits to workers in legal, same-sex marriages, regardless of where the couple resides. Employees in same-sex marriages now have consistent federal family leave rights as those in opposite-sex marriages to take leave to care for a spouse with a serious health condition. The new rule updates the regulatory definition of “spouse” providing benefits now based on the law of the place where the same-sex marriage was entered into, regardless of whether the state in which the couple currently resides recognizes such marriages.

An employee …

Handbook and other statements made about the availability of FMLA leave may be binding

Posted in Leave Administration

In a decision issued by the United States Court of Appeals for the Sixth Circuit (the “Court”) on January 26, 2015, an employee who, but for statements made by his employer, would not have been eligible for leave under the FMLA was nevertheless found to be entitled to it. The Court’s opinion in Tilley v. Kalamazoo County Road Commission, et al. should serve as a warning to all employers that statements made to employees about their FMLA eligibility may be binding, even if the employees do not meet the eligibility criteria required by the statute.

The FMLA provides that an …

Employment Law Proposals Highlight State of the Union Address

Posted in EEO, Leave Administration, Wage & Hour

In last night’s State of the Union Address, President Obama reemphasized that employment and labor reform are at the forefront of his current agenda. He urged lawmakers to pass laws regarding the following:

  • Equal pay law for women;
  • Higher federal minimum wage;
  • Government-mandated 7 days of paid sick leave per year.

As we have previously reported, many states, including Ohio, and municipalities have raised minimum wages at the state or local level. As of January 1, 2015, Ohio’s minimum wage is $8.10 per hour for employers with annual gross receipts of $297,000 or more, which is higher than the current …

Flu season: guidance for employers

Posted in Leave Administration, Workforce Strategies

Flu Season - iStock_000015547443Small

Looking for more articles on seasonal workplace issues?  Check the Forecast here. Our Employer Law Forecast covers relevant seasonal issues to help you more effectively manage your workforce.

 

 

As the weather turns colder, concerns about the flu resurface. With many reports that this year’s flu vaccine is less effective than usual, flu season figures to be worse than ever. The U.S. Department of Health and Human Services has issued updated guidance for businesses and employers, which can be found at: Make It Your Business to Fight the Flu: A Toolkit for Businesses and Employers. Employers should be …

Circuit Courts remind employers that notice is the key in administering the FMLA!

Posted in Leave Administration, Other Articles, Traps for the Unwary

Both the Third and Sixth Circuit Courts of Appeal issued decisions last month reminding employers that providing proper notices to employees is a key to administering the FMLA. In Wallace v. FedEx Corporation, the Sixth Circuit upheld the district court’s ruling that the employer interfered with its employee’s FMLA rights when it failed to notify her of the consequences of not turning in an FMLA leave certification. Similarly, in Lupyan v. Corinthian Colleges, Inc., the Third Circuit reversed a summary judgment finding in favor of the employer because there was a factual dispute regarding whether the employer …

Federal court finds employer may be liable under the ADA for employee’s snarky Facebook comments about another employee’s medical condition

Posted in EEO, Leave Administration, Other Articles

In Shoun v. Best Formed Plastics, Inc., a federal judge held that an employer may be liable for an employee’s snarky Facebook comments about another employee’s medical condition. This case serves as a good reminder to employers and employees alike of the importance of preserving the confidentiality of employee medical information.

Factual background

George Shoun, an employee at Best Formed Plastics, suffered a workplace injury and took a few weeks off work to recover. Jane Stewart, another employee, processed his worker’s compensation claim and monitored his medical treatment for the company. In doing so, she learned the nature and …

University gets it right when it says, “enough is enough”: Tenth Circuit upholds inflexible leave policy under Rehabilitation Act

Posted in EEO, Leave Administration

Employers who have been concerned about the EEOC’s stance on inflexible maximum leave policies can find some comfort in the Tenth Circuit’s decision in Hwang v. Kansas State University, wherein the court held a six month leave of absence was a reasonable accommodation, and the University’s denial of additional time was not a violation of the Rehabilitation Act.

Facts

Grace Hwang was employed as a professor at Kansas State University from 1994 until February 2012, on a year-to-year contract. Ms. Hwang served as an assistant professor in KSU’s School of Leadership Studies. In 2005, Hwang was diagnosed with breast …

Sixth Circuit reverses course and holds that telecommuting may be a reasonable accommodation

Posted in EEO, Leave Administration

Courts in the past, including in the Sixth Circuit (which includes Ohio), have held that telecommuting is not required as a reasonable accommodation because regular attendance at work on a predictable schedule is an essential function of almost all jobs (excepting those that are regularly done by all employees from a remote location). On April 22nd, however, the Sixth Circuit reversed course in a 2-1 decision in EEOC v. Ford Motor Company and revived the EEOC’s lawsuit on behalf of a fired Ford worker with irritable bowel syndrome.

The employee utilized intermittent FMLA leave over a period of …

You must watch the company you keep to ensure FMLA compliance!

Posted in Leave Administration

The Sixth Circuit Court of Appeals has reversed a district court finding of summary judgment in the employer’s favor in Demyanovich v. Cadon Plating & Coatings et al., concluding that Cadon Plating may be a covered employer under the FMLA based on its relationship with an affiliated company and that its termination of an employee almost immediately after he requested FMLA leave may have violated both the FMLA and ADA.

Facts

Alan Demyanovich worked for Cadon Plating & Coatings for over 20 years as a helper, operator, and an area leader. In late 1998, Demyanovich experienced health problems.  His doctor …

Sixth Circuit holds contract clause to arbitrate future claims does not apply to past claims

Posted in Employment Class & Collective Actions, Leave Administration

In Russell v. Citigroup, Inc. the Sixth Circuit held that an agreement to arbitrate “all employment-related disputes” with the company does not include cases already pending in court when the employee signed the arbitration agreement.

Background

From 2004 to 2009, Keith Russell worked at Citicorp’s call center in Florence, Kentucky. As a condition of employment, he signed an arbitration agreement, which covered individual claims but not class actions. In January 2012, Russell filed a class action against the company claiming wage/hour violations. Because the arbitration agreement did not extend to class actions, Citicorp did not seek to arbitrate the class …

Ohio Supreme Court to hear notable employment dispute at special off-site session in Toledo

Posted in Leave Administration

Two centuries ago, the Justices of the Ohio Supreme Court “rode the circuit” on horseback across the State, holding court in Ohio’s many county courthouses. A bit of that tradition survives today under the Court’s Off-Site Court Program, which is held twice a year outside of Columbus in order to educate high school students and other Ohio citizens about Ohio’s judicial system. As the Court’s website explains,

“When the Supreme Court holds court off-site, public, private and home-schooled high school students from throughout the host county are invited to participate. The students and their teachers are provided with curriculum

Don’t Play Fast and Loose with FMLA rights!

Posted in Leave Administration

Concluding that the employer’s failure to notify a pregnant employee of her FMLA rights and to reinstate her to her former position or any other equivalent position after taking leave unlawfully interfered with her FMLA rights, the Sixth Circuit Court of Appeals in Clements v. Prudential Protective Services, LLC, reversed a district court finding of summary judgment in the employer’s favor.

Facts

Telitha Clements worked for Prudential Protective Services, LLC (“Prudential”) as a security guard in Detroit, Michigan from 2006 until she was laid off in 2009. Clements worked at the New Center Complex for years under a number …

Sometimes An Employer Just Can’t Win

Posted in EEO, Leave Administration, Traps for the Unwary, Workforce Strategies

In Deleon v. Kalamazoo Cnty. Road Comm’n, a split Sixth Circuit panel concluded that the district court improperly granted the employer summary judgment on the plaintiff’s discrimination claims despite the fact that the alleged adverse employment action was a transfer that the plaintiff had actively sought only nine months earlier.

Robert Deleon (“Deleon”), a 53-year-old Hispanic male of Mexican descent was employed with the Kalamazoo County Road Commission (“Commission”) for 28 years. Deleon was an “Area Superintendent” and had generally received positive reviews. When an “Equipment and Facilities Superintendent” position opened up in November 2008, Deleon applied. The working …

Oh the Weather Outside is Frightful! How Employers Can Handle the Impact of Inclement Weather (Polar Vortex Anyone?) and What NIOSH, OSHA, the NLRA and the FLSA Have to Say About It

Posted in Leave Administration, Traps for the Unwary, Workforce Strategies

For some, snowflakes bring thoughts of snowmen and sleigh rides. For others, they signal the beginning of closed business days, employees arriving late to work, and all sorts of other issues—all the result of inclement weather! Since many parts of the United States are currently dealing with the effects of, what-is-being-called, the “Polar Vortex,” we decided to take a look at some common headaches for employers caused by bad weather and provide you with some helpful guidance.

The National Institute for Occupational Safety and Health Addresses Cold Stress

Extreme cold temperatures have disastrous effects on humans and their ability to …

Two Ohio Cases Highlight That When It Comes to the FMLA, Employers Need to Set Their Radars to Detect Potential Interference Claims

Posted in Leave Administration

The Family and Medical Leave Act (FMLA) prohibits more than just retaliation — it also prohibits interference. More specifically, the FMLA provides: “it shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA and interference claims arise when an employer’s actions prevent or interfere with an eligible employee’s rights under the FMLA. 29 USC § 2615.

Two recent Ohio district court cases highlight just how important it is for employers to keep the interference provision in mind when navigating employee FMLA requests.

First …

Sixth Circuit Does Not Permit Amnesiac Plaintiff to Revive Memory Via Contradictory Affidavit

Posted in EEO, Leave Administration

I have to admit that I generally love it when a federal court judge begins an opinion with a flourish like this: “December 20, 2011, was defining day for Appellant Angela Powell-Pickett.” Almost made me think of Dickens’ “It was the best of times, it was the worst of times…” (OK, maybe not quite.) But I knew from that first line in the court’s opinion in would be a good one. And I wasn’t disappointed.

You see, on December 20, 2011, as the court points out, Ms. Powell-Pickett finally had her deposition taken in her lawsuit against her former employer …

Sixth Circuit Upholds Summary Judgment for Employers in Two Cases Brought by Terminated Pregnant Employees

Posted in Leave Administration

Two Sixth Circuit decisions issued last week underscore the hazards associated with terminating an employee between the time that she announces her pregnancy and any time shortly after she returns from pregnancy leave. Fortunately, both decisions, which uphold lower court summary judgment decisions, also demonstrate that an employer can escape liability when it has valid reasons for the termination, even when the termination was made at a time that was temporally close to the pregnancy announcement or the pregnancy itself. In the first decision, Madry v. Gibraltar National Corporation, the court upheld summary judgment for the employer on Madry’s …

No One Said Anything About Light Duty!

Posted in Leave Administration

Seventh Circuit Court of Appeals affirmed the District Court’s grant of Summary Judgment in James v. Hyatt Regency Chicago reminding employers they are under no obligation under the FMLA to restore an employee to his or her position if the employee is unable to perform the essential functions of the job.

So here are the facts—Carris James was employed at Hyatt Regency as a steward for over 22 years. Although James was born with very poor vision, he was able to perform his job functions by wearing correctable eyeglasses and using magnifying glasses. Hyatt also accommodated him by increasing the …

New FMLA Forms and Poster to Be Used on March 8, 2013; Employers Should Review and Change FMLA Policies Consistent with New Rules

Posted in Leave Administration

The DOL recently issued its final regulations regarding expansion of military caregiver and qualifying exigency leave and regulations affecting flight crews. These new rules take effect this Friday, March 8. We covered these rules when they were initially proposed by the DOL. The rules issued in their final form are consistent with our previous summary, and the official commentary and final rules can be accessed here.

The updated forms are available here, and the updated poster is available here.

What are the changes?

Most employers will need to be concerned only with the changes to leave available …

‘Tis the Season For Holiday Workplace Issues – Download our Holiday eBook with FMLA Stocking Stuffer – “Three FMLA Holiday Stocking Stuffers: How to Avoid a Big Lump of Coal”

Posted in Leave Administration, Traps for the Unwary, Wage & Hour, Workforce Strategies

We hope you enjoyed our five-part series last week addressing the Top 5 Holiday Headaches for Employers. Due to popular demand, we have compiled this series into an eBook for you and have added a special bonus:

Three FMLA Stocking Stuffers: How to Avoid a
Big Lump of Coal

We couldn’t do a holiday-blog series and NOT include something about every employer’s favorite holiday topic. Like fruitcake, it is a gift that nobody really wants or knows what do with… the FMLA.

Here we tackle three prickly FMLA-holiday questions. First, do holidays count against an employee’s FLMA leave entitlement? Second, …

Ohio Federal District Court Rejects Public Policy Wrongful Termination Claim Against Private Employer Based On First Amendment

Posted in Leave Administration, Workforce Strategies, Workplace Privacy

The summary judgment decision issued on October 31st by Ohio federal district court judge David Dowd in Barnett v. Aultman Hospital contains important reminders for both private employers and their employees. For employers, there is the reminder that they are not bound by the First Amendment’s protections for free speech. And for employees: Always remember to confirm that your supervisor actually has been fired before going to Facebook to celebrate.

In January 2011, after receiving the erroneous information that her supervisor had been fired, the plaintiff, Wendy Barnett, a registered nurse at Aultman Hospital sent an email through Facebook to …