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Articles Posted in Family & Medical Leave Act (FMLA)

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The Third Circuit Court of Appeals recently ruled that when an employee submits a deficient medical certification in support of a request to take time off pursuant to the Family Medical Leave Act (“FMLA”), the employer has to give the employee an opportunity to correct the deficiencies before it can deny the request. The Third Circuit is the federal appellate court which handles appeals stemming from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

Businesswoman need medical leave from workDeborah Hansler worked for Lehigh Valley Health Network as a technical partner. In March 2013, she began experiencing medical symptoms including shortness of breath, nausea and vomiting. On March 13, she requested an intermittent FMLA leave and submitted her doctor’s supporting medical certification form. The certification indicated that she needed two days off per week for approximately a month. However, it did not identify her medical condition because her doctor had not yet diagnosed her.

Ms. Hansler took a total of 5 days off from work for medical reasons between March 13 and March 25, 2013. Lehigh Valley never asked Ms. Hansler or her doctor to explain why she needed this time off. Instead, on March 28, 2013, the company fired her for “excessive absences” including the five days she took off due to her medical condition. When Ms. Hansler reminded Lehigh Valley that she had requested time off pursuant to the FMLA, Lehigh Valley told her it had denied her request for a leave.

After Lehigh Valley fired her, Ms. Hansler received a letter dated March 26, 2013 indicating that the company denied her request for a medical leave because her “condition presently does not qualify as a serious health condition under the criteria set forth by the [FMLA].”

In early April, after she had been fired, Ms. Hansler’s doctor diagnosed her with diabetes and high blood pressure. According to Ms. Hansler, those medical conditions caused the symptoms that necessitated her time off from work in March.

Ms. Hansler sued Lehigh Valley, alleging it violated the FMLA by denying her a medical leave and by firing her because she requested one. The District Court dismissed her case, finding she was not protected by the FMLA because her medical certification did not establish that she had a “serious health condition” that would have entitled her to time off pursuant to the FMLA.

However, the Third Circuit Court of Appeals disagreed. In Hansler v. Lehigh Valley Hospital Network, it held that Lehigh Valley was required to give Ms. Hansler an opportunity to cure the deficiencies in her doctor’s certification before it could deny her request for a medical leave. It explained that the United States Department of Labor’s regulations require that, whenever an “employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee . . . to ascertain whether leave is potentially FMLA-qualifying.” The regulations also require employers to specify, in writing, what information they believe is missing from an employee’s FMLA medical certification. Lehigh Valley never sought any such information from Ms. Hansler.

In further support of its ruling, the Third Circuit noted it is not uncommon for a doctor to need time to diagnose a medical condition. As a result, “the difference between a medical certification that supports [FMLA] leave and one that is deficient might be a matter of days.” Thus, even though Ms. Hansler’s doctor had not diagnosed her condition when she initially requested her leave, she presumably would have been able to provide that information if her employer had requested additional information.

Similarly, the Third Circuit ruled that the evidence could support a finding that Lehigh Valley fired Ms. Hansler in retaliation for requesting an FMLA leave. Accordingly, it reinstated that claim to give Ms. Hansler an opportunity to try to prove it.

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New regulations issued by the United States Department of Labor (DOL) make it clear that the Family & Medical Leave Act (FMLA) protects spouses in same sex marriages.

same-sex marriage protected under FMLAThe FMLA is a federal law which, among other things, guarantees covered employees can take up to 12 weeks per year off from work to care for their own serious health condition, a serious health condition of a member of their immediate family, or for pregnancy, childbirth or adoption. To be covered, an employee must have worked for the employer for at least 12 months, worked at least 1,250 hours for the employer during the previous 12 months, and worked at a location at which the employer has at least 50 employees within a 75 mile radius.

The FMLA defines “immediate family” to include a parent, child or spouse. However, until last year’s Supreme Court decision in United States v. Windsor, the federal government did not recognize same sex marriages. Therefore, the FMLA did not protect employees in same sex marriages to the same extent it protects employees in opposite sex marriages. The new regulations are intended to correct this problem.

For instance, the new regulations make it clear that the term “spouse” includes partners in same sex marriages. Specifically, it includes (1) any individual who is considered married under the law of the State in which the marriage was entered into, and (2) any individual who is married outside of the United States if the marriage is recognized both in the country in which the marriage took place and in at least one State.

In addition to expanding the definition of spouse, the new regulations make it clear that irrespective of whether they are the same or opposite sex, both parents are entitled to take FMLA leave for the birth or adoption of their child, and to bond with their newborn child during the first year after birth. The previous version of the regulations referred to these rights belonging to the “mother” and “father,” terms that assumed a marriage is only be between a man and a woman.

Likewise, the new regulations make it clear that a spouse of either gender is entitled to take time off to care for his or her pregnant spouse who is incapacitated, providing prenatal care, or has a serious health condition following childbirth. Previously, the regulations only gave this right to the “husband” on the assumption that the spouse who is not pregnant would be a man.

Numerous other provisions of the FMLA regulations were revised to be consistent with same sex couples. For example, previous rights of “the mother” were changed to be rights of the “expectant mother” in recognition that marriages can have two mothers, and the rights in question belong to the mother who is pregnant. These rights include time off due to incapacity as a result of pregnancy, for prenatal care, or for the expectant mother’s own serious health condition following childbirth.

These new regulations are scheduled to go into effect on March 27, 2015.

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Last week, I discussed a case dealing with the defense to Family & Medical Leave Act (“FMLA”) claims based on the employee’s inability to perform the essential functions of her job. The same case also addresses the employee’s claim that her employer retaliated against her for taking an FMLA leave. Specifically, Vanessa Budhun claims her employer, Reading Hospital and Medical Center, replaced her before her FMLA-protected leave ended.

The District Court dismissed Ms. Budun’s retaliation claim on the basis that (1) she was unable to return to work before her 12 weeks of FMLA leave expired, (2) she was neither fired nor experienced another adverse employment action, and (3) there was not enough evidence to prove she was fired because she requested an FMLA leave.

Office Employee Collected Items After Fired in Violation of Family & Medical Leave ActOn appeal, the Third Circuit rejected all three of those arguments. First, it rejected the argument that Ms. Budhun was unable to return to work before her FMLA leave expired. It did so for the same reasons it found Reading Hospital could have interfered with her FMLA rights, as discussed in last week’s article: FMLA Requires Medical Support for Employer Denying Reinstatement Based on Employee’s Inability to Perform Essential Job Functions.

Second, the court rejected the argument that Ms. Budhun did not experience an adverse employment action. As explained in the opinion, an adverse employment action is something that “alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.” Examples include being fired, suspended or demoted.

The District Court concluded Ms. Budhun voluntarily resigned because the company never told her she was fired and she failed to return to work before her 12 weeks of FMLA-protected leave expired. The Third Circuit disagreed. It recognized that a reasonable jury could find Ms. Budhun experienced an adverse employment action when Reading permanently replaced her and told her to pick up her personal belonging and to return her company badge and keys. Reading did not offer Ms. Budhum another job, and instead told her she was ineligible to transfer to another position within the hospital. According, the Third Circuit held that even though Ms. Budhum was not expressly fired, she had experienced an adverse employment action.

Finally, the Third Circuit found that a jury could find Ms. Budhun established a link between her FMLA leave and her termination.  Reading Hospital argued there was more than a two month gap between Ms. Budhun’s request for an FMLA leave in August 2010 and the company’s decision to replace her in November 2010. However, the Third Circuit recognized a jury could conclude Reading decided to replace her as early as September 15, which was before her protected FMLA leave had expired, and only about a month after she requested this leave. It found this relatively short time between her request for an FMLA leave and the company’s decision to replace her is “unusually suggestive” of retaliation, and therefore sufficient to support a retaliation claim. Accordingly, in Budhun v. Reading Hospital and Medical Center the Court ruled that a jury must decide whether the company retaliated against Ms. Budhun, and reversed the District Court’s order dismissing that claim.

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Earlier this year, the Third Circuit ruled that Reading Hospital and Medical Center may have violated the Family & Medical Leave Act (“FMLA”) by failing to reinstate one of its employees after her physician cleared her to return to work.

Vanessa Budhun broke a bone in her right hand on July 30, 2010 and subsequently began an FMLA leave. On August 12, 2010, she submitted a doctor’s note clearing her to return to work on August 16. The doctor’s note also stated: “No restrictions in splint.”

In response, Reading informed Ms. Budhun that because her doctor’s note said “no restrictions” she had to return to work “full duty (full speed).” The hospital also indicated that if she could not work at full speed she had to submit another doctor’s note extending her medical leave. In a subsequent email, Reading clarified that Ms. Budhun could not return to work until she had use of all 10 fingers.

FMLA claim Employee typing with broken handMs. Budhun’s doctor then submitted FMLA forms to Reading indicating her leave would end on August 16. Her physician also included a note asking to excuse her from work until September 8, apparently in reaction to the hospital indicating she could not return until she was able to work at full speed. Gradually, Ms. Budhun’s doctor extended her medical leave until September 23. Since Ms. Budhun already had used approximately 4 weeks of FMLA leave earlier in the year, this exceeded her annual entitlement of 12 weeks of FMLA-protected leave.

By September 25, Ms. Budhun still was unable to return to work without limitations. As a result, Reading gave her job to another employee. On October 6, 2010, the company told her to pick up her personal belongings and return her identification badge and keys. By November 9, 2010, Reading deemed Ms. Budun to have abandoned her job.

Ms. Budhun filed a lawsuit alleging Reading had interfered with her rights under the FMLA. The District Court dismissed her case, ruling the FMLA allows employers to refuse to permit employees to return to work until their doctors clear them to work without restrictions. Ms. Budhun appealed.

In Budhun v. Reading Hospital and Medical Center, the Third Circuit reversed the trial court’s order dismissing Ms. Budhun’s claim. It found enough evidence to support her claim that Reading violated the FMLA by refusing to permit her to return to work on August 16.

The Third Circuit recognized the FMLA permits an employer to refuse to reinstate an employee returning from a leave if she cannot perform the essential functions of her job. However, it held that it is up to the employee’s health care provider, not the employer, to determine if the employee can perform those functions.

The court further ruled that an employer cannot require an employee’s physician to determine if she can perform the essential functions of her job unless the employer provides a list of those job functions. Reading did not do so, and Ms. Budhun’s doctor cleared her to return to work with “no restrictions.” As a result, the hospital was obligated to permit her to return to work.

Instead, without any medical support, Reading required Ms. Budhun to have full use of all of her fingers before she could return to work. It did so even though she was able to type, and there was nothing in her job description requiring her to type at any particular speed. Accordingly, the Third Circuit ruled a jury could find Reading interfered with Ms. Budhun’s rights under the FMLA by failing to reinstate her, and reversed the order dismissing her claim.

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A recent decision by the New Jersey District Court addressed important issues regarding retaliation following an employee’s request for a reasonable accommodation and time off under the Family and Medical Leave Act (“FMLA”).

Supermarket CartsIn Boles v. Wal-Mart Stores, Inc., plaintiff Barry Boles worked for Wal-Mart Stores, Inc. for approximately ten years. As a result of a medical condition, his physician signed him out of work for approximately five months, which included several extensions of leave. Wal-Mart retroactively approved his FMLA leave (12 weeks), and designated his remaining time off as personal leave. The plaintiff claimed he did not receive documentation regarding how his leave was allocated or indicating he could be fired if he failed to return to work following his FMLA leave. Within three days after Boles returned to work, Wal-Mart terminated him for failure to return to work following his approved leave.

The plaintiff had received a performance warning approximately two weeks prior to taking leave. Shortly thereafter, Wal-Mart claimed that on one occasion prior to his leave he failed to complete certain overnight job responsibilities and to notify his supervisors that he was leaving early.

The plaintiff brought claims for (1) retaliation for seeking an extension of medical leave in violation of the New Jersey Law Against Discrimination (“LAD”); (2) disability discrimination under the LAD; (3) failure to reasonably accommodate his disability under the LAD; and (4) interference with his FMLA rights.

Reasonable Accommodation

Regarding the reasonable accommodation claims, Wal-Mart argued the plaintiff could not meet his burden of proof because “taking medical leave does not constitute protected activity that would support a retaliation claim under the NJLAD.” The Court rejected this argument and held that the LAD’s anti-retaliation provision includes as “protected activity” requesting and taking medical leave. As a result, employers found to have retaliated against employees for requesting or taking medical leave can be liable. The Court also found there was sufficient evidence to support the plaintiff’s claim that his discharge was motivated by Wal-Mart’s resentment toward his request for leave. In so concluding, the Court relied on (1) an email his direct supervisor sent to his own supervisor about discharging the plaintiff during his FMLA leave; and (2) the fact that Wal-Mart discharged the plaintiff only three days after he returned to work.

The Court, however, held that because the plaintiff had received a warning indicating unsatisfactory work performance, left work without notifying his supervisors, and failed to complete certain overnight work, he could not meet the necessary initial showing for a disability discrimination case. In particular, the Court concluded that the plaintiff was not meeting his employer’s reasonable expectations regarding his work performance. Surprisingly, the Court also held the plaintiff did not request a reasonable accommodation when he provided a physician’s certification indicating he needed leave beyond the date he originally requested. The Court found the plaintiff did not directly request additional leave from his employer, but rather merely submitted a certification from his physician indicating a later return to work date. The Court found these facts could not maintain a claim for a failure to accommodate a disability. The Court then granted summary judgment to Wal-Mart in these respects.

FMLA Interference

The Court stated it was unclear whether Wal-Mart provided the plaintiff adequate notice that he was eligible for FMLA leave or sufficient information regarding the expiration of his FMLA leave. The Court found that the plaintiff may have been prejudiced by the company’s failure to provide adequate notice since he may have made alternative plans if he understood he could be fired if he did not return to work prior to the expiration of his approved leave. As a result, the Court denied Wal-Mart summary judgment as to the plaintiff’s claim of interference with his FMLA rights.

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The City of New York recently passed the Earned Sick Leave Act, a new law that will require employers in New York City to provide employees a minimum amount of sick leave per year. Specifically, employers will have to provide at least 1 hour of sick time for every 30 hours an employee works, with a maximum requirement of 40 hours of sick time to an employee each year. It only applies to employees, not independent contractors. It does not apply to professional employees, even if they are paid by the hour.

Initially, employers with more than 20 employees must pay employees during the required sick leave. Eventually, that requirement will apply to companies with at least 15 employees. Smaller employers will only be required to provide unpaid sick leave. Companies will be permitted to count paid time off, such as paid vacation, personal days or days of rest, toward the required paid sick time, and can count other paid or unpaid time off toward the required unpaid sick time.

Sick Leave Law in NYC.jpgNew York City employees will be entitled to use their sick leave time for their own mental or physical illness, injury, medical diagnosis, or preventive medical care; or to care for a family member who needs care or treatment for a mental or physical illness, injury or health condition, a medical diagnosis, or preventive medical care. The law defines family members to include the employee’s child, parent, spouse, domestic partner, or the child or parent of the employee’s spouse or domestic partner. Employees also will be able to use sick leave if their workplace or their child’s school or childcare provider is closed by a public official due to a public health emergency.

The new law indicates that employees can carry over sick time that they did not use in one year to the next, unless the company decides to pay them for their unused time. Companies are not obligated to let employees use more than 40 hours of sick time in a single year. But employers are not required to pay employees for their unused sick time, even when the company lays them off or fires them.

The Act includes an anti-retaliation provision which prohibits employers from threatening, disciplining, firing, demoting, suspending, reduction hours, or taking any other adverse employment action against any employee because he exercised (or attempted to exercise) his rights under the law. Importantly, it requires employees who want to bring a legal claim to file a complaint with the New York City Department of Consumer Affairs within 270 days after he knew or should have known about a violation. The law also includes provisions to protect the identity of individuals who bring claims under it, presumably out of concerns for workplace privacy.

The Earned Sick Leave Act will not begin to go into effect until April 1, 2014, at the earliest, and will be fully in effect by October 2016, at the latest. Once the law goes into effect, employees will begin to earn sick time. However, companies do not have to allow employees to use their sick time for 120 after it goes into effect. Similarly, companies do not have to permit employees to begin using this sick leave until 120 after they begin their job.

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The New Jersey Appellate Division recently ruled that an employer violated the Family & Medical Leave Act (FMLA) by requiring an employee to provide a new doctor’s note each time he took time off as part of an intermittent family leave. The FMLA permits a qualified employee to take time off to care for his immediate family member who has a serious health condition. When medically necessary, an employee can take an FMLA leave intermittently, meaning he can take hours or days off when necessary instead of taking the leave all at once.

Mother Taking Temperature Sick Child.jpgRalph West worked as a Corrections Officer for Burlington County. Officer West also was a member of the Policeman’s Benevolent Association (PBA) Local #249 Union. Under its collective bargaining agreement with the PBA, if the County suspects an employee of abusing sick leave it can require him to submit proof of illness. If an employee fails to submit proof within 7 days, the County can require the employee to forfeit his salary during the sick leave and/or discipline him.

Officer West’s son has sickle cell disease. As a result, he sometimes experiences serious health problems including strokes. On March 3, 2010, Officer West requested a family leave under the FMLA to care for his son. The County approved his leave as an intermittent FMLA leave from March 3, 2010 through December 31, 2010.

On May 2, 2010, Officer West’s son woke up jaundiced and in pain. Officer West took the day off to care for his son as part of his intermittent FMLA leave. The next day, his supervisor told him he had to submit proof his son was ill on May 2. Officer West was unable to submit a doctor’s note because he had not taken his son to the doctor, and the doctor was unwilling to write a note because he had not seen his son. As a result, the County docked Officer West’s pay for May 2 and told him he had to submit proof of illness each time he took time off as part of his intermittent family leave. Similarly, the County suspended Officer West for two days when he again called out sick to care for his son on August 15, 2010 without submitting a doctor’s note.

In Police Benevolent Association Local No. 249 v. County of Burlington, the Appellate Division ruled that the County’s policy requiring Officer West to submit a doctor’s note each time he took time off as part of his intermittent family leave violated the FMLA because it interfered with his rights under the FMLA. The Court found this was especially true since there was no evidence Officer West ever abused his intermittent family leave. In doing so, the Court distinguished another case that found a company did not violate the FMLA by requiring employees to call in each day they are out for a medical leave, since it is much easier to call than it is to submit a doctor’s note each time you need to take a day off under the FMLA. In other words, although an employer can impose requirements on employees who take FMLA leaves, those requirements violate the FMLA if they are onerous.

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Last month, the United States Department of Labor (DOL) clarified when a qualified employee can take a leave under the Family & Medical Leave Act (FMLA) to care for an adult child. As the Interpretation explains, the FMLA permits eligible employees to take up to 12 weeks off from work to care for a son or daughter who has a serious health condition. The FMLA defines a “son or daughter” to include a biological, adopted, or foster child, as well as a stepchild or legal ward. It applies to all children who are under 18 years old. It also applies to children who are at least 18 years old, but only if the child (1) has a disability; (2) is incapable of caring for him or herself due to the disability; (3) has a serious health condition; and (4) needs a parent to care for him because of the serious health condition.

1. The Adult Child Has a Disability

Employee need FMLA leave for adult child.jpgThe DOL explained that the first requirement for qualified employees to take an FMLA leave to care for their adult child is the child must have a disability as defined by the Americans with Disabilities Act (ADA). Fortunately, the FMLA adopts the ADA’s relatively new and much broader definition under the Americans with Disabilities Amendment Act (ADAAA). That definition includes any physical or mental condition that substantially impairs a major life activity. Major life activities include the ability to care for yourself, perform manual tasks, see, hear, eat, sleep, walk, stand, lift, bend, speak, breath, learn, read, concentrate, think, communicate, or work. As long as it substantially limits a major life activity, a disability can include a pregnancy-related condition or a condition that is episodic or in remission.

2. The Adult Child is Incapable of Self-Care

The second requirement for the FMLA to cover an adult child is the child must be unable to care for him or herself due to the disability. As the DOL explained, this means the son or daughter needs daily assistance or supervision to care for at least three “activities of daily living” or “instrumental activities of daily living.” Activities of daily living include grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, or using the post office.

3. The Adult Child Has a Serious Health Condition

The third requirement is that the adult son or daughter has a serious health condition. This means the adult child must have an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. As the DOL’s Interpretation recognizes, although the FMLA’s definition of a serious health condition is different from the ADA’s definition of a disability, many conditions are both a serious health condition and a disability.
4. The Parent Needs to Care for the Adult Child Due to the Serious Health Condition

The final requirement for a qualified employee to be entitled to an FMLA leave to care for an adult child is the adult child must need the parent’s care because of the serious health condition. This includes situations in which the parent needs to care for an adult son or daughter who is “unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor” due to a serious health condition. It also includes situations in which a parent needs to provide psychological comfort or reassurance to an adult child who has a serious health condition while receiving inpatient or home care.

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Earlier this month, in Lichtenstein v. University of Pittsburgh Medical Center, the Third Circuit Court of Appeals answered several important questions under the Family & Medical Leave Act of 1993 (FMLA). The FMLA is a federal law that requires larger companies to allow qualified employees to take time off for pregnancy, their own serious health condition, or to care for an immediate family member with a serious health condition. The Third Circuit is the federal appellate court that handles appeals from federal court in New Jersey.

What is Enough Information to Request an FMLA Leave?

Employee takes FMLA leave at hospital emergency room.jpgOne issue the court clarified is what an employee is required to say to request an FMLA leave. It ruled that an employee only has to provide the employer enough information for the company to determine that the FLMA might apply. At that point, if the employer needs more information to determine whether the FMLA actually applies, it has to ask the employee. Applying that rule, the court found Jamie Lichtenstein had requested an FMLA leave when she told her employer, the University of Pittsburgh Medical Center (UPMC), that (1) her mother was in the emergency room, (2) her mother had been brought to the hospital by ambulance, and (3) she would not be able to work that day. The court ruled that although this was not necessarily enough information for UPMC to determine whether Ms. Lichtenstein was entitled to an FMLA leave, it was enough information that UMPC had to at least ask her for more information.

What Does it Mean to “Care For” a Family Member?

The court also clarified what it means to “care for” a family member with a serious health condition. It explained that “caring” not only includes providing physical care, but also “psychological comfort and reassurance,” to a family member with a serious health condition. The court concluded that a jury could find UPMC should have understood the reason Ms. Lichtenstein was at the hospital with her mother was to provide her emotional comfort and reassurance, and therefore was a request for an FMLA leave.

How Can You Prove Your Employer Retaliated Against You For Requesting an FMLA Leave?

The court also discussed how an employee can prove that the decision to fire her was based on her request for an FMLA leave. First, it explained that that an employee can prove this based solely on evidence of the timing between her request for an FMLA leave and the company’s decision to fire her, but only if the timing is “unusually suggestive.” Since UPMC fired Ms. Lichtenstein within a week after she requested an FMLA leave, the court found that alone could be enough for a jury to find in her favor.

Second, the court explained that even when the timing is not enough by itself to prove the employer fired the employee because she took an FMLA leave, the employee can use other evidence to prove her claim. For example, Ms. Lichtenstein could use the fact that the company stated that her absence on the day when she was at the hospital with her mother was one of the reasons it fired her. She also could use the fact that her supervisor initially claimed she made the decision to fire Ms. Lichtenstein before she requested an FMLA leave, but later testified that she could not remember when she made the decision.

Notably, the court ruled that Ms. Lichtenstein can proceed with her FMLA claim even though she admittedly had numerous unexcused absences and was repeatedly late to work before she ever requested an FMLA leave. It explained that the company had every right to fire her for those reasons. However, it is illegal to consider an employee’s FMLA leave as a “negative factor” in a decision to fire an employee, even if there are other factors that led to the decision. Since there is evidence suggesting that Ms. Lichtenstein’s FMLA leave could have been the “straw that broke the camel’s back,” the court ruled that a jury must decide whether UPMC used her FMLA as a negative factor in its decision to fire her.

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Q. What are my rights when I am ready to return to work from an FMLA leave?

A. Generally, if you seek to return to work at the end of your Family & Medical Leave Act (“FMLA”) leave, your employer must reinstate you to your job, or an equivalent job in terms of duties, compensation, benefits, and other terms and conditions of employment.
It is important to note that normally an employee loses this protection if he or she takes more than 12 weeks off. However, as discussed in a recent article, under certain limited circumstances the FMLA Can Protect an Employee Who Took a Medical Leave for More Than 12 Weeks.

Q. Does my company always have to return me to my job after my FMLA leave?

A. Although employers usually have to reinstate you to your job or an equivalent one at the end of your FMLA leave, there are several exceptions. First, a company does not have to reinstate you if it had a mass layoff or reduction in force while you were on your FMLA leave, and it can prove it would have laid you off even if you had not taken an FMLA leave.

Second, if you are a “key employee,” then your employer might be able to refuse to reinstate you if it can show it will experience a “substantial” and “grievous” economic injury to its business if it did so. The FMLA defines key employees to be employees whose salaries are in the highest 10% of the company’s employees within 75 miles of your worksite.

Q. What damages can I recover in a case under the FMLA?

Thumbnail image for Money Damages Gavel.jpgA. An employee who wins a lawsuit under the FMLA can recover his or her lost wages and benefits. In some circumstances, you also can recover double damages (called liquidated damages) equal to your lost wages and benefits. In addition, you can recover your attorney’s fees and legal costs.

However, the FMLA does not allow you to recover damages for emotional distress or pain and suffering you have experienced. It also does not permit you to recover punitive damages.

Q. My company is violating my right under the FMLA. What can I do?

It is illegal for your employer to refuse to permit you to take time off that you are entitled to under the FMLA. Likewise, it is usually illegal for a company to fire you instead of letting you return to work after your FMLA leave, or to retaliate against you because you requested or took an FMLA leave.

For more information about the FMLA, please refer to our previous Frequently Asked Questions about FMLA Basics, Types of FMLA Leaves, and Requesting an FMLA Leave.

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