Employer Law Report

Tag Archives: leave administration

New DOL opinion letter may provide clarity as to when FMLA-mandated breaks are paid and when they are unpaid

As we previously reported in the post “The return of Department of Labor Opinion Letters,” the U.S. Department of Labor (DOL) began issuing opinion letters again in mid-2017 after a six-plus-year hiatus. On April 12, 2018, the DOL issued an opinion letter, FLSA 2018-19, regarding when FMLA-mandated breaks for intermittent leave for an employee’s serious health condition are paid and when they are unpaid.…

DOL releases final rules on paid sick leave for federal contractors

A special thanks to Adam Bennett for his work on this article.

The U.S. Department of Labor recently released its final rule requiring federal contractors and subcontractors to provide their employees with at least seven days of paid sick leave each year. The final rules were published on Friday, Sept. 30 and will go into effect 60 days after publication (Nov. 29, 2016). Despite the “effective date,” the sick leave rule will only apply to federal contractors and subcontractors entering into new contracts where the solicitation was issued or the federal contract was awarded on or after Jan. 1, 2017.…

EEOC issues new guidance on employer-provided leaves as a reasonable accommodation

Earlier this week, the EEOC issued new guidance addressing what it described as common issues it continues to see in discrimination charges filed under the Americans with Disabilities Act. This new guidance provides nothing new that has not already been included in its Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, but does highlight, among other issues, the EEOC’s view that the ADA requires employers to:…

Director of human resources may be personally liable for FMLA violations

What an interesting and challenging time to be a human resources professional. There are the day-to-day challenges such as dealing with management needs, trying to support employee morale, keeping an eye on policy enforcement, legal compliance and workplace investigations. The list goes on. The U.S. Court of Appeals for the 2nd Circuit recently added one more challenge. The Court held that a human resources professional can be held personally liable for her company’s FMLA violations.

The Culinary Institute of America questioned the validity of an employee’s medical support for FMLA time off. In the ensuing communication between company and employee, …

DOL joins NLRB in making joint employment an enforcement priority

In prior posts (Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes,” and ; NLRB poised to relax standard for establishing joint employment; may mean more union issues in franchising and temporary service worker deals ), we wrote about decisions by the National Labor Relations Board (NLRB) that expand the definition of joint employment and broaden potential liability for violations of the National Labor Relations Act. Last month, the U.S. Department of Labor (DOL) joined the NLRB in making joint employment an enforcement priority when it issued an Administrator’s Interpretation and …

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

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!

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

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”

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

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 …

Anything You Post or Are Tagged in on Facebook Will Be Used Against You: The Sixth Circuit Upholds Honest Belief Defense to Employee’s FMLA Retaliation Claim Who Went on a Pub Crawl While on Leave, But Skirts Issue As Applied to FMLA Interference Claims

Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012) involves three seemingly-unrelated topics: social media, Polish festivals, and the honest belief defense to FMLA claims. When combined, however, they turn into a fun set of facts that the Sixth Circuit recently got to chew on.

The Facts

Advantage Health Physician Network ("Advantage") hired Sara Jaszczyszyn ("Plaintiff") to work at its Staffing Center Float Pool on a part-time basis. She eventually was promoted to a full-time customer service representative. Nine months in, Plaintiff began complaining of back pain, which was the result of an old accident, and asked …

Sixth Circuit: FMLA Does Not Preclude Terminating an Employee the Day He Returns from Leave

The Family Medical Leave Act ("FMLA") requires an employer to restore an eligible employee who takes FMLA to the position the employee held when the FMLA leave commenced or to an equivalent position. Most cautious employers take this to mean that they cannot terminate an employee on the day he or she returns from FMLA leave; however, in Winterhalter v. Dykhuis Farms, Inc., Case No. 11-1743 (6th Cir. July 23, 2012), the Sixth Circuit allowed an employer to do just that under certain circumstances.

In Winterhalter, Robert Winterhalter ("Winterhalter") began working for Dykhuis Farms ("Dykhuis"), a pig farm, …

Texas Federal Court Decision Addresses ADA and FMLA Issues Arising From Employee’s Return From Alcohol Rehab

The recent decision out of Texas in Sechler v. Modular Space Corporation highlights a recurring issue for employers — managing employees who return to work following rehabilitation for substance abuse. In Sechler, the plaintiff, a recovering alcoholic, was by all accounts an excellent employee for approximately 10 years until he experienced a relapse. He requested EAP services and, as a result received outpatient treatment for about a month.

Upon returning to work, he was asked to sign a "Return-to-Work” agreement, outlining the requirements with which he had to comply as a condition of his return to work. The Agreement specified …

Sixth Circuit Rejects FMLA Retaliation Claim Based On Employer’s Honest Belief That Employee Had Committed Fraud

Employers often defend against discrimination and retaliation claims by arguing that courts should not act like super human resources managers who second guess their employment decisions. A panel of the Sixth Circuit took that argument to heart in its May 8th decision in Seeger v. Cincinnati Bell Telephone Co., in which the court upheld summary judgment in favor of the employer on the ground that the employer had an “honest belief” that the plaintiff had engaged in disability fraud.

Tom Seeger was on FMLA leave for aback injury when he was spotted at the Cincinnati Oktoberfest by several of …

Supreme Court Says States Can’t Be Sued Over FMLA “Self-Care” Provision

On March 20, 2012, in a 5-4 decision, the Supreme Court of the United States ruled that states cannot be sued for denying workers sick leave under the FMLA.

Daniel Coleman, an African-American male, was employed with the Maryland State Court of Appeals from March 2001- August 2007 and served most recently as executive director of procurement and contract administration. Coleman requested a 10-day medical leave under the "self-care" provision of the Family and Medical Leave Act ("FMLA") to deal with his hypertension and diabetes. Coleman claims he was forced to resign or be terminated because he was African-American and …

One Week Left to Comment on Proposed Regulations to the FMLA

The Department of Labor ("DOL") published proposed regulations to the Family and Medical Leave Act ("FMLA") on February 15, 2012, and the deadline for public comments has been extended through Monday, April 30, 2012.

The DOL introduced the proposed regulations to implement and interpret the 2009 amendments to the federal FMLA. They address three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.

The proposed regulations include several changes in regards to Military Family Leave. First, military caregiver leave has been expanded to cover eligible employees …

Two Ohio District Court Opinions Highlight an Employee’s Obligation to Provide Proper Medical Certification to Qualify for FMLA Leave

The FMLA is a confusing topic for employers and human resource professionals. Many times, the mere mention of the letters "F" "M" "L" "A" out of an employee’s mouth are enough for the employer to grant the employee leave, no more questions asked.

This is why two recent Ohio federal district court opinions are helpful to employers navigating the FMLA terrain as they highlight that an employer does not have to take the employee at his or her word that FMLA time off is needed. Rather, the employer has the right to request and receive proper medical certification of a …

DOL Publishes its Proposed Rules on Military Family Leave and Flight Crews; FMLA Forms No Longer “Expired”

Proposed Regulations:
Yesterday, the Department of Labor published its proposed regulations (pdf) to address the recently enacted changes to military leave and eligibility requirements for flight crew members. Beyond the changes detailed below, the DOL clarified that employers are not required to provide employees with FMLA-protected military caregiver leave for the "serious injury or illness of a veteran" until final rules defining that term are issued. However, employers are required to comply with the expansion of qualifying exigency leave for foreign deployment of a family member in the regular Armed Services, in addition to the leave already available for family members …

Notice of Intent to Take FMLA Leave May Just Be Enough

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 …

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 …

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