FMLA

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Last month, the Eleventh Circuit Court of Appeals (which has jurisdiction over Florida, Georgia and Alabama) held that a pregnant employee, who provided several months notice to her employer of her intention to take leave upon the birth of her child, was protected under the Family and Medical Leave Act ("FMLA") despite the fact that at the time she provided the notice, she was not eligible for FMLA. In short, the court held that the FMLA protected employees who make pre-eligibility requests for post-eligibility leave from both interference with the leave and from retaliation.

Appellant Kathryn Pereda ("Pereda") began working for Brookdale Senior Living Communities, Inc. on October 5, 2008. In June of 2009, Pereda advised Brookdale of her pregnancy and that she would be requesting FMLA leave around November 30, 2009, after the birth of her child.

Pereda alleges everything changed after she announced her pregnancy. First, she was no longer considered one of the top employees at Brookdale. Second, Brookdale began harassing her, causing stress and complications in her pregnancy. Third, Brookdale’s management placed her on a performance improvement plan with unattainable goals. Lastly, Pereda alleges that although she was eligible for sick and personal leave and was told she could use that time for doctor’s visits, management wrote her up for taking leave time to visit the doctor.

In August of 2009, Pereda took a few days off, and notified Brookdale management of her absence via email. When she returned to work she was written up for failure to obtain verbal authorization for her absence.

In September 2009, Pereda’s physician placed her on bed rest. Pereda left a phone message with the executive director, but did not receive a return call. Pereda was unable to reach someone at Brookdale until several days later, at which time she was fired.

Pereda filed a Complaint against Brookdale on May 11, 2010, asserting that "Brookdale interfered with her FMLA rights, insofar as Brookdale denied her benefits under the FMLA to which she was entitled, and terminated her for attempting to exercise those rights."Continue Reading Notice of Intent to Take FMLA Leave May Just Be Enough

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.

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

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.
Continue Reading District Court Ruling Encourages Employers to Evaluate Relationships

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 exhausted, his supervisor told him that he needed to provide the requested documentation or return to work within 48 hours. Rather than doing either, Farhner faxed a request for FMLA leave. After conducting an investigation (which included an actual hearing), KCSR terminated Farhner for insubordination.Continue Reading Sixth Circuit Upholds Denial of ERISA-Based Income Protection Benefits; Plan Administrator Need Not Investigate Whether the Employer Violated FMLA

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 I do not want to do at this time." Mr. Righi’s manager attempted to call him on his cell phone several times over the next week or so to clarify his request for leave, but Mr. Righi had turned off his phone. His manager also left two messages with his roommate. It wasn’t until the ninth day after taking his leave that Mr. Righi called in. At that point, however, his manager called him into the office and fired him the next day.

When an employee fails to give his employer proper notice of the need for FMLA leave, the employer has no duty to provide it. Stated otherwise, an employee’s failure to comply with the FMLA’s notice requirements precludes a claim that the employer interfered with his rights under the FMLA because he failed to fulfill his obligations in order to be protected. While not sufficiently clear to trigger SMC’s obligation to provide written FMLA materials and certification forms to Righi, his email did trigger SMC’s obligation to make further inquiry as to whether he intended to designate his leave as FMLA. The Seventh Circuit held that SMC met that obligation by making multiple phone calls to him and that Righi’s failure to respond "doom[ed] his FMLA claim because he not only failed to designate his leave as FMLA, but he also failed to give SMC any indication as to when he would be returning to work." Continue Reading Seventh Circuit Upholds Denial of FMLA Leave To Employee Who Ignored Employer’s Telephone Calls

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…

The DOL recently issued an Administrator’s Interpretation which 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.
Continue Reading Recent Department of Labor Interpretation Broadens FMLA Coverage to Same-Sex, Non-Traditional Parents

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.
Continue Reading Ohio’s New Military Family Leave Law Takes Effect