Employer Law Report

Archives: Leave Administration

Subscribe to Leave Administration RSS Feed

USDOL FMLA Forms Have “Expired”

We have been receiving questions lately from clients and friends regarding the continued validity of the Department of Labor’s FMLA forms that we posted here. The Department has requested approval for the renewal of these forms from the federal Office of Management and Budget. In the meantime, employers may continue to use these forms. In order to comply with the Genetic Information NonDiscrimination Act ("GINA"), however, employers should also send a note to the healthcare provider that includes the following safe harbor language recommended by the EEOC:

"The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other …

The Sixth Circuit Settles It: FMLA Interference Claims Should Be Evaluated Under the McDonnell Douglas Framework

Even though the FMLA has been around since 1993, the Sixth Circuit did not get around to designating the appropriate framework for reviewing FMLA interference claims until January 17, 2012.

In Donald v. Sybra, Inc., Case No. 10-2153 (6th Cir. January 17, 2012) the Sixth Circuit held that the McDonnell Douglas burden-shifting framework applies to FMLA interference cases.

The case concerned an Arby’s franchise that terminated Gwendolyn Donald’s employment after it determined that she had been improperly discounting drive-in window orders and pocketing the difference. Among other allegations, she claimed that her employer terminated her employment in retaliation for …

District Court Ruling Encourages Employers to Evaluate Relationships

The recent Utah district court decision in Kuhn v. Comfort Hospice Care, LLC highlights the importance of evaluating relationships with professional employer organizations ("PEO’s"), as these relationships may cause an unknowing employer to be held liable under the FMLA.

Comfort Hospice Care, LLC ("Comfort") provides medical care to terminally ill patients in Las Vegas, Nevada and Layton, Utah.

Comfort had a contract with a PEO, Innovative Staffing, Inc. ("Innovative") for human resource assistance, and Comfort employees were listed as employees of Innovative for compensation purposes. Innovative employees had no supervisory control over Comfort employees, they just performed administrative functions.

At …

Sixth Circuit Upholds Denial of ERISA-Based Income Protection Benefits; Plan Administrator Need Not Investigate Whether the Employer Violated FMLA

As demonstrated by the Sixth Circuit’s recent decision in Farhner v. United Transportation Union Discipline Income Protection Program, a well-drafted ERISA income protection or severance pay plan should enable the plan administrator to rely on the employer’s stated reason for termination of an employee, rather than conducting an independent review of the facts regarding the termination.

In May 2004, Mark Farhner, a trackman and conductor for the Kansas City Southern Railroad sought a three-month leave of absence for "medical reasons." KCSR’s human resources manager requested additional information from Farhner to justify his request. When Farhner’s vacation leave had been …

Seventh Circuit Upholds Denial of FMLA Leave To Employee Who Ignored Employer’s Telephone Calls

As the Seventh Circuit in Righi v. SMC Corporation of America noted, it generally does not take much for an employee to preserve his rights under the FMLA; he must simply provide enough information "to place the employer on notice of a probable basis for FMLA leave."

When Robert Righi abruptly left a mandatory training seminar to care for his ill mother, however, he only sent an e-mail that said that he needed "the next couple days off" to arrange for his mother’s care and that he had vacation time available or "could apply for the family care act, which …

Supreme Court Upholds “Cat’s Paw” Liability

In a scenario that frequently occurs in workplaces across the country, Linda Buck, the vice president of human resources at Proctor Hospital, was asked to terminate Vincent Staub based on information contained in a report from his supervisors that accused him of violating the terms of a “corrective action” disciplinary warning. Relying on this accusation and her own review of Mr. Staub’s personnel file, Ms. Buck decided to terminate Mr. Staub’s employment. Mr. Staub protested to Ms. Buck that his supervisors were hostile to his military obligations as a member of the U.S. Army reserves, but rather than follow up …

City of Columbus May Require Employees Returning from Sick Leave to Provide Doctor’s Note

Current and former employees of the City of Columbus, Division of Police, challenged the City’s Directive requiring employees returning from sick leave to submit a doctor’s note, stating the "nature of the illness" and whether the employee is capable of returning to regular duty to their immediate supervisors. The employees filed suit in the United States District Court for the Southern District of Ohio, alleging that the Directive violates the Rehabilitation Act, which prohibits discrimination against individuals with disabilities by programs receiving federal funding. The plaintiffs also alleged that the Directive violates the privacy provisions of the First, Fifth and …

Employers: When it Comes to the FMLA, Leave Common Sense Behind

In Branham v. Gannett Satellite Information Network, Inc., No. 09-6149, 2010 WL 3431617 (6th Cir. Sept. 2, 2010), the Sixth Circuit Court of Appeals held that an employer is not necessarily entitled to rely on a “negative certification” submitted by an employee’s health care provider in denying a request for FMLA leave. 

The plaintiff-employee in Branham initially claimed that the absences for which her employment was terminated were related to a “serious health condition” within the meaning of 29 CFR § 825.113. Her employer responded by requesting that the employee produce a medical certification confirming her inability to work. However, the …

Recent Department of Labor Interpretation Broadens FMLA Coverage to Same-Sex, Non-Traditional Parents

The U.S. Department of Labor (DOL) issued an Administrator’s Interpretation of the Family and Medical Leave Act’s (FMLA) definition of “son and daughter” under Section 101(12) of the Act on June 22, 2010. The Interpretation clarifies that an employee who lacks a legal or biological parent-child relationship but provides either day-to-day care or financial support, and intends to assume the responsibilities of a parent with regard to the child, is eligible for parental rights to FMLA leave. 

The Interpretation relies on an expansive reading of “in loco parentis” in the FMLA definition of “son or daughter.” “Son or daughter” is defined to …

DOL Issues Guidelines on New Requirement for Break Time for Nursing Moms

The federal health care reform legislation passed in March of this year included an amendment to the Fair Labor Standards Act (FLSA), requiring employers to provide reasonable unpaid break time to nursing mothers to express breast milk for the nursing child. The requirement to provide breaks extends for one year after the child is born. The DOL has just released a fact sheet with general information about the requirements.

Briefly, the law requires that employers provide "reasonable break time… each time such employee has need to express milk." Employers must provide a private location, free from intrusion, other than a …

Ohio’s New Military Family Leave Law Takes Effect

Employers should take notice of Ohio Revised Code Chapter 5906, which became effective on July 2, 2010. This law requires employers with 50 or more employees to provide up to two weeks of unpaid leave to an employee who is the spouse, parent, or a person with legal custody of a uniformed service member called into active duty or injured while on active duty. Under the new Ohio law, employers must allow employees to take leave up to 10 days or 80 hours, whichever is less, once per calendar year. During this time, employers must continue to provide benefits other than salary and …

Ohio Supreme Court Decision Allows Employers to Refuse Maternity Leave to and Terminate Employees who Have Not Met the Length of Service Requirements of the Employer’s Leave Policy

As an update to my previous post on this case, the Ohio Supreme Court last week released an opinion in Ohio Civ. Rights Comm’n v. Nursing Care Mgmt. of Am., Inc., reversing the decision of the Ohio Fifth District Court of Appeals, which previously held that an employer unlawfully discriminated by terminating an employee requiring pregnancy-related leave who did not meet the length of service requirement of the employer’s general leave policy. The Court held that pregnant employees must only be treated the same as all other employees under an employer’s leave policy and can be terminated while on a …

Lessons Learned for Performance Appraisals and RIFs from the Sixth Circuit in Cutcher v. Kmart

Even in the face of an undisputed national workforce reduction, in a recent decision (Cutcher v. Kmart), the Sixth Circuit found an issue of disputed fact existed as to whether Kmart’s termination of an hourly associate as part of a reduction in force interfered with and was in retaliation for that associate’s recent exercise of her FMLA rights.

Cutcher had been employed by Kmart for about 20 years. In the four years she had been evaluated by her then current supervisor, Cutcher had received either the highest or second-highest rating in Kmart’s appraisal system. While her supervisor did comment in certain …

Recently Released DOL Budget Makes Worker Misclassification and State Paid Leave Priorities for the Next Fiscal Year

On Monday, February 1, 2010, the U.S. Department of Labor (DOL) released its budget for the 2011 fiscal year. In a 95-page summary of the new budget, the DOL elaborated upon its plans for the approximately $14 billion it seeks in discretionary budget authority. According to the summary, the DOL will focus its efforts in 2011 on supporting reform of the Workforce Investment Act, rebuilding Worker Protection Programs, initiating a multi-agency legislative proposal to establish automatic workplace pensions, and boosting funds for unemployment insurance integrity efforts. From our perspective, however, the two most notable aspects of the 2011 budget are its provisions concerning employer …

Congress Extends COBRA Premium Subsidy

The much-publicized COBRA subsidy contained in the American Recovery and Reinvestment Act (ARRA), commonly known as the “stimulus bill,” has been extended and expanded by Congress through House Resolution 3326. Under ARRA, individuals who were involuntarily terminated and became eligible for COBRA benefits between September 1, 2008 and December 31, 2009 were eligible for 9 months of subsidized COBRA premiums. The government, through a payroll tax rebate to employers, paid 65% of an eligible employee’s COBRA premiums for 9 months. This meant that employees could pay just 35% of what they would ordinarily pay for COBRA benefits. (Please see our earlier blog posting relating …

Facebook Photos Prompt Termination of Long Term Disability Benefits

CBC News in Canada is reporting that a Canadian long-term disability insurance carrier recently terminated the long-term disability benefits a Quebec woman was receiving for "major depression" after photos she posted on her Facebook page showed her "having a good time at a Chippendales bar show, at her birthday party and on a sun holiday." According to the CBC, the woman, 29-year-old Nathalie Blanchard, contends that her doctor recommended that she try "to have fun, including nights out at her local bar with friends and short getaways to sun destinations, as a way to forget her problems." Nevertheless, Manulife, the …

Expansion of FMLA Entitlement for Military Families

The Family and Medical Leave Act has undergone yet another expansion. On October 27, 2009, President Obama signed H.R. 2647, known as the "Fiscal Year 2010 National Defense Authorization Act.” This new law comes on the heels of new FMLA rights that were just drafted at the end of 2008 for employees with family members serving in the military. 

As we described at the time in 2008 Final Regulations for the FMLA:  A Summary, the FMLA military leave provision effective at the beginning of 2009 originally extended the following protections:


(a) up to 12 weeks of leave for families of

How Should the Ohio BWC and Industrial Commission Treat Claims for H1N1?

As concerns about the potential scope of the H1N1 flu continue to grow, one question we keep hearing from clients is whether employees who believe they have contracted H1N1 in the workplace may have compensable workers’ compensation claims. In the vast majority of cases, we believe the answer will be a resounding "No."

Ohio defines an occupational disease as:

"a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a …

Ohio Supreme Court Agrees to Hear Maternity Leave Case

I wanted to post a follow up to my earlier post – Ohio Fifth District Court of Appeals Decision Requires That Employers Provide a Reasonable Period of Time for Unpaid Maternity Leave Regardless of Length of Service or Leave Policy.

On July 29, 2009, the Ohio Supreme Court, with Justices Pfeifer and O’Donnell, dissenting, agreed to accept the defendant employer’s appeal for review. We will keep you posted as this case proceeds to oral argument and decision.  For more details about this case, please read our earlier post.…

Updated Guidance for Businesses and Employers for the Fall Flu Season

Concerns about H1N1 Influenza are beginning to creep back into everyone’s consciousness as summer is drawing to a close. The U.S. Department of Health and Human Services has issued updated guidance for businesses and employers, which can be found at:

CDC Guidance for Businesses, Employers, and Workplaces to Plan and Respond to 2009 H1N1 Influenza

Preparing for the Flu: A Communication Toolkit for Businesses and Employers

Employers should be ready to implement strategies to protect their workforces while ensuring continuity of operations. Most of the recommendations boil down to simple common sense:

  1. Encourage workers who are sick to stay home

Healthy Families Act of 2009 Introduced in Congress

On May 18, 2009, Representative Rosa L. DeLauro, a Democrat from Connecticut, introduced the Healthy Families Act of 2009 (H.R. 2460) in the U.S. House of Representatives. The bill, which is largely the same as bills issued in prior sessions of Congress, would require employers with more than 15 employees to provide workers with up to 56 hours of paid sick leave each year. Under the bill, workers would accrue paid sick leave at the rate of one hour for every 30 hours worked, could begin using the paid sick leave after 60 days of employment, and could roll over …

Supreme Court Issues Decision in AT&T v. Hulteen

On May 18, 2009, the Supreme Court of the United States issued its opinion in AT&T v. Hulteen. Reversing the Ninth Circuit’s decision, the Court held that AT&T did not violate the Pregnancy Discrimination Act of 1978 (PDA) by calculating the accrual of pension benefits in a way that gives less retirement credit to employees who took pregnancy leave before enactment of the PDA than to employees who took other kinds of medical leave.

AT&T offered pension benefits based on Net Credited Service, which was calculated based on an employee’s date of hire and adjusted for any time the employee …

DOL Issues Opinion Letter Requiring Employees Requesting FMLA Leave to Comply with Employer’s Usual and Customary Policies

One of the underappreciated benefits for employers in the recent amendments to the FMLA regulations announced by the Department of Labor (DOL) effective January 2009 was clarification of an employee’s obligation to comply with the employer’s procedural requirements for requesting leave.  This employee obligation was further strengthened this month.

In Opinion Letter FMLA 2009-1-A, released on May 5, 2009, the DOL responded to an employer inquiry challenging the prior regulations and an earlier Opinion Letter, FMLA-101 (dated January 15, 1999).  Those earlier authorities had been widely interpreted as prohibiting employers from enforcing any internal call-in and no-call/no-show policies if …

It’s Not Too Soon to Prepare for Swine Flu Pandemic

Now that we have the first confirmed case of swine flu here in Ohio, it makes sense to dust off the guidance we received from the U.S. Department of Labor and the Center for Disease Control when the avian flu was prompting concerns about a pandemic flu in the United States. Thus far, the confirmed cases of swine flu in the United States appear to have been relatively mild, but employers nevertheless should prepare to do their part to reduce the threat of pandemic flu and to respond should their workplaces be hard hit.

Those employers who want to be ahead …