Articles Posted in Family & Medical Leave Act (FMLA)

Last week, the Third Circuit Court of Appeals ruled that an employee cannot establish a retaliation claim under the Family & Medical Leave Act (“FMLA”) if his employer honestly believed he abused his right to take time off under the FMLA.

Employer's Mistaken Belief Defeats FMLA Retaliation ClaimFrederick Capps worked as a mixer for Mondelez Global, LLC.  Mr. Capps suffers from Avascular Necrosis, a condition involving a “loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially  suffocating and causing death of those cells.”  As a result, Mr. Capps has arthritis in both hips and had double hip replacement surgery in 2004.  He also periodically experiences severe pain that can last for weeks.  Accordingly, he requested and Mondelez granted him an intermittent FMLA leave, meaning he could take time off when it was medically necessary.

On February 14, 2013, while he was on an FMLA leave, Mr. Capps went to a local pub for dinner and drinks.  On his way home, he was arrested for drunk driving.  He was released from jail the next morning, Friday, February 15, and took that day off as FMLA leave.  He returned to work on Monday, February 18.

According to a recent report in the New Jersey Law Journal, New Jersey State Assemblyman Reed Gusciora is planning to propose legislation to improve paid family leave benefits.

New Jersey employees entitled to paid family leavesThe New Jersey Paid Family Leave Act, which was passed in 2009, permits eligible employees to take up to 6 weeks of paid family leave per year.  Employees who take family leave receive up to two-thirds of their compensation, with a maximum benefit of $615 per week.

Assemblyman Gusciora is seeking to add protection against retaliation for employees who take time off under the Paid Family Leave Act.  Although there are many other statutes that protect employees against retaliation under certain circumstances, currently there is no such protection in the Act.

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.

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.

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.

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.

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 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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