Adjunct Law Prof Blog

DOL Publishes FMLA Guide

This guide is available for free and is not written in legalease. It can be found here.

MItchell H. Rubinstein

Visit To Doctor To Pick Up Prescription Refill Not Considered Treatment Under FMLA

The 7th Circuit recently held that an employee who did not receive actual medical treatment during a specific absence could not support an FMLA interference claim for his termination. Jones v. C&D Technologies, Inc., 7th Cir, No. 11-3400, June 28, 2012.

A vist to the doctor to get a prescription refill was not considered treatment. What about a visit to the doctor to take blood? Or a visit to get an X-Ray? I cannot imagine that this case will be adopted by a majority of courts.

Mitchell H. Rubinstein

 

US DOL Releases New Family and Medical Leave Guide

The U.S. Department of Labor released a new Employee Guide to the Family and Medical Leave Act on June 27, 2012. The new guide, available online and in print, includes easy-to-follow and informative charts that map out the FMLA leave process and a summary of how coverage and eligibility are determined.
View the Slideshow<http://www.dol.gov/dol/media/photos/slideshows/20120627-leppink-whdchat.htm>; Listen to the Archived Webinar<http://www.dol.gov/whd/fmla/employeeguide-webinar.htm>; Download the FMLA Guide<http://www.dol.gov/whd/fmla/employeeguide.htm>.

Mitchell H. Rubinstein

 

DOL Issues New FMLA Forms

The DOL has updated several FMLA forms. The forms that have been updated are as follows:

• WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition
• WH-380-F: Certification of Health Care Provider for Family Member’s Serious Health Condition
• WH-381: Notice of Eligibility and Rights & Responsibilities
• WH-382: Designation Notice
• WH-384: Certification of Qualifying Exigency For Military Family Leave
• WH-385: Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave

For more information, check out the DOL’s website.

Mitchell H. Rubinstein

Title VII standard for materially adverse employment action applies to FMLA retaliation claim

Millea v. Metro–North R.R. Co.2011 WL 3437513 (2d Cir. Aug. 10, 2011).

FMLA retaliation claim proceeds based on single comment; employee with chronic back problem not regarded as disabled

A nursing assistant’s FMLA retaliation claim survived summary judgment based on a single comment that she was not really terminated for altering a doctor’s note. Quinn v Mercy Fitzgerald Hosp, ___F.Supp. 2d (D. Pa. July 22, 2011).  However, her ADA and Pennsylvania Human Relations Act (PHRA) claims failed under a pre-ADAAA analysis because she could not show that she was regarded as unable to perform a wide variety of jobs due to her chronic back condition.

This case demonstrates once again that a retaliation claim may be a more potent claim than the underlying claim on the merits.

Mitchell H. Rubinstein

Bill would amend FMLA to allow parents time-off to mourn the death of a child

Legislation has been introduced in the U.S. Senate that would amend the Family and Medical Leave Act to give parents grieving the death of their child as many as 12 weeks of un paid leave. The FMLA currently only provides protection to employees need "to care" for certain family members.

The Parental Bereavement Act of 2011 (S. 1358) would add grieving over the death of a child to the list of activities for which an individual may take leave under the FMLA. The leave cannot be taken intermittently or on reduced schedule unless both the employer and employee agree. 

Mitchell H. Rubinstein

 

Employee who was terminated before expiration of his FMLA leave failed to show violation

An employee whose medical condition rendered him unable to work for substantially longer than the 12-week leave period provided for by the FMLA failed to show any prejudice as a result of his termination. The interesting thing about this case was that his termination occurred prior to the expiration of the leave period Hearst v Progressive Foam Technologies, Inc, ____F.3d____ (8th Cir, June 8, 2011).

Mitchell H. Rubinstein

WORKER'S FAILURE TO STAY IN TOUCH DURING LEAVE LEADS TO JOB LOSS

 

An employee who failed to communicate with his employer during family leave or submit required paperwork regarding his absence could be considered to have abandoned his job and could be fired. Tautrim v. Echostar Satellite, No. G043717, 2011 WL 2001851 (Cal. Ct. App., 4th Dist., Div. 3 May 24, 2011).

California's 4th District Court of Appeal rejected the plaintiff's claim that he was fired in retaliation for exercising his rights under the California Family Rights Act, Cal. Gov't Code § 12945.1.

The decision was decided under state law law. Query whether the result would be the same under the FMLA. I suspect it would.

Mitchell H. Rubinstein

 

FMLA Does Not Cover Faith Healing Trip

Tayag v. Lahey Clinic, ____F.3d____(1st Cir. Jan. 22, 2011), is both an interesting and important case. The First Circuit held that a company that fired a woman for taking unapproved time off to accompany her husband on a “faith healing” trip did not violate the federal Family and Medical Leave Act. The circuit areed with a lower court's finding that the trip, a seven-week “healing pilgrimage” was not protected under the statute “because it was effectively a vacation.” Such travel is not “medical care” as defined by the FMLA, 29 U.S.C. § 2601. 

Mitchell H. Rubinstein

Definition of Son or Daughter Under FMLA

I bet you never thought there would be an issue with respect to the definition of son or daughter. Well, the issue comes up  when there is no legal or biological parent-child relationship. The FMLA has issued an opinion letter seeking to clarify who a son or daughter is.

The DOL has adopted a multi-factor test. It is the Wage and Hour Administrator’s interpretation that either day-to-day care or financial support may establish an in loco parentis parental status relationship where the employee intends to assume the responsibilities of a parent with regard to a child. But in all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.

The full text of the Division’s interpretation letter FMLA 2010-3 can be found here: http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm.

Mitchell H. Rubinstein

Public Employment - Front pay award, as proxy for reinstatement, was equitable remedy, under FMLA, to be determined by court rather than jury.

Traxler v. Multnomah County, (C.A.9 (Or.)) March 3, 2010:

In a matter of first impression, the Ninth Circuit joined the Fourth, Fifth, and Tenth Circuits, in holding that front pay awarded under the Family Medical Leave Act (FMLA) was an equitable remedy that must be determined by the district court, both as to the availability of the remedy and the amount of any award. The district court's $267,000 front pay award in lieu of reinstatement, representing almost three years of a county employee's salary and benefits or nearly four years of her salary, rather than $1,551,000 awarded by the jury, was supported by both the court's reasoning and substantial evidence.

Mitchell H. Rubinstein

EDMich: Timing of discharge, stack of work raised fact questions in FMLA case

A marketing communications specialist discharged on the day she returned from FMLA leave may go forward with her interference and reprisal claims under the Act. After dismal holiday sales in 2007, Sysco decided to cut staff, including the specialist’s position. On the day the specialist returned from FMLA leave, she was told that her employment was terminated. The employee alleged she was fired because she took FMLA leave for the birth of her daughter. Sysco argued that due to dismal holiday sales it needed to reduce its workforce, and that the majority of the specialist’s duties had been outsourced, necessitating the elimination of her position. However, the record revealed that the employee returned to a stack of work after returning from leave and a coworker reported that the company was very busy in her absence. Consequently, triable issues existed as to whether the employee’s discharge would have occurred regardless of her taking FMLA leave. In so ruling, the court relied on the timing of the decision to terminate the employee, the lack of documentary support that Sysco would save money by eliminating her position, and the evidence that her workload and duties had not diminished at the time of her FMLA leave (Mastin v Sysco Food Servs of Detroit LLC, March 24, 2010).

Mitchell H. Rubinstein

Under FMLA mix of expert, lay testimony can establish serious health condition

Schaar v Lehigh Valley Health Servs, Inc, ___F.3d____(3rd Cir. March 11, 2010), is an interesting FMLA decision. A combination of expert and lay testimony can establish that an employee was incapacitated for more than three days, a showing required by the FMLA's implementing regulations. A medical receptionist sued her employer, claiming FMLA interference and discrimination, when she was fired six days after taking two days of sick leave followed by two days of previously scheduled vacation time in order to recover from a urinary tract infection and a related illness. A district court held the employee did not establish that she had a serious health condition because she failed to present medical evidence that she was incapacitated for more than three days. The district court granted summary judgment to the employer, finding that the doctor's note she provided to her employer established incapacitation for only two days and her reliance on her own testimony about the remaining days was insufficient to establish a serious health condition. Vacating and remanding, the Third Circuit noted that all of the circuits to address the issue have held that lay testimony can create a factual issue regarding incapacitation. After reviewing the relevant DOL regulations, the appeals court found no support for the categorical exclusion of all lay testimony regarding the length of an employee's incapacitation. In contrast to the Fifth and Ninth Circuits, however, the Third Circuit did not rule that lay testimony alone was sufficient to establish incapacitation. Rather, it agreed with Eighth Circuit precedent, holding that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.

Mitchell H. Rubinstein

Discharged employee offers evidence of FMLA interference, retaliation

Erdman v Nationwide Ins Co, ___F.Supp.2d____(M.D. Pa.January 15, 2010), is an interesting case. An employee who applied for FMLA leave after being denied vacation time to prepare her Down Syndrome child for school and then was terminated for purported behavioral problems offered enough evidence to support a reasonable jury finding that she was discharged for attempting to invoke her FMLA rights. The company had revoked the employee's modified work schedule, initially implemented so that she could care for her disabled daughter, and notified her that it would eliminate her job unless she accepted a full-time position with a standard schedule. While she agreed to the schedule, she sought confirmation of, but was denied, her previously requested vacation to prepare her daughter for school. When the employee stated that she would use FMLA leave if her vacation request was not approved, she was fired for multiple incidents of inappropriate workplace behavior. Denying claims of FMLA interference and retaliation, the employer argued that it had offered the employee a full-time position, granting her full-time status even though she declared her intent to seek FMLA leave before accepting the company's offer. However, given the facts alleged, a reasonable factfinder could discredit the contention that employee misconduct prompted the discharge, the court concluded. 

Mitchell H. Rubinstein

What Happens After An Employee's FMLA Leave Expires?

A posting from Jeff Nowak of Franczek Radelet in Chicago via Workplace Prof Blog reminds us that even after an employees FMLA leave expires, an employer may have an obligation to accommodate his or her disablity. This important issue is discussed in January FMLA Insights podcast,

Mitchell H. Rubinstein

Trip abroad with ill husband for faith healing was not FMLA-protected leave

Tayag v Lahey Clinic Hospital, ____F.Supp.2d___(D. Mass.January 6, 2009), is an unusual case. An employee's seven-week trip to the Philippines with her husband (who has a serious health condition), ostensibly so that he could participate in a faith healing event at a Catholic "Pilgrimage of Healing Ministry," was not protected under the FMLA.

The employer required her to obtain FMLA certification supporting the need for leave. After being advised that the employer did not receive the information necessary to evaluate her leave request, the employee left for the Philippines anyway. Meanwhile, her husband's cardiologist sent the employer a medical certification stating the employee did not need to take leave to care for her husband. The employee was terminated for taking unapproved leave, and she filed suit, alleging, among other claims, FMLA interference and retaliation. Her claims failed, however: At no point during the entire trip did her husband receive medical treatment or visit a health care professional. While he did spend three and a half weeks attending the healing ministry, and "even if caring for a sick spouse on a trip for faith healing were protected because of its potential psychological benefits," nearly half of their trip was spent not in faith healing but visiting friends, family, and local churches. The FMLA does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an "incidental consequence" of taking him on vacation. The employee's ADA associational discrimination claim failed as well; the court rejected her assertion that the employer violated the ADA by requiring her to produce "unnecessary medical verification" of her husband's condition. Being asked to produce additional paperwork, even if the request was unreasonable, does not constitute an adverse employment action under the ADA.

Mitchell H. Rubinstein

Donning Time Does Not Count Towards 1250 Hours Requirement Under FMLA

The Supremes have declined to grant certiorari in a case in which the Seventh Circuit held that an employee could not count towards the 1,250-hour minimum for Family and Medical Leave Act (FMLA) eligibility the three to five minutes she spent each workday donning and doffing her gloves, shoes, and a work shirt. Those articles of clothing did not constitute extensive and unique protective equipment that was integral and indispensable to her principal activities as a mail handler for the United States Postal Service (USPS), the Seventh Circuit reasoned.

The employee's petition for certiorari asserted that the Seventh Circuit's holding conflicted with decisions of the Third and Ninth Circuit Courts of Appeals, and with the Secretary of Labor's interpretation of the Act, as set forth in the Postal Service's petition for rehearing by the Seventh Circuit. The petition for rehearing, which disavowed the rationale of the Seventh Circuit's decision, had been supported by an amicus brief from the Secretary of Labor, according to the employee's petition for certiorari. (Case below: Pirant v. U.S. Postal Service, 542 F.3d 202 (C.A.7-Ill. 2008), as mod. on den. of reh'g, (C.A.7-Ill 2008).)

Law review commentary on this issue might be in order.

Mitchell H. Rubinstein

Appeals court finds plenty of evidence to support FMLA claim

DeFreitas v Horizon Investment, ___F.3d___(10th Cir. August 14, 2009, is an interesting case. Plaintiff  was discharged the day after telling her employer she needed a full six weeks off to recover from a hysterectomy (per doctor’s orders). The court held that she presented sufficient evidence to make out a prima facie claim for FMLA interference.  The supervisor expressed concern about the six-week time frame and said his sister had returned to work a few days after her hysterectomy. In explaining the discharge, the supervisor said: “You are very talented and I know, when back in the pink of health, [you] will bounce back and secure another job without even a glitch.” He told a prospective employer that the employee left the company due to “illness” and, as for “areas for improvement,” he wrote “take better care of herself.” As the court observed, ”One reason that a reasonable jury could reject Defendants’ [alternate] assertions regarding the grounds for firing her is that there appears to have been another ground for her firing, a very simple, commonsensical one—namely, that she was missing too much work. This is hardly an unheard-of reason for an employer to discharge an employee.” Noted the court: “It would be eminently reasonable to believe that an employer who was ignorant of the FMLA,” as the employer here admitted, “would engage in the very practice that the FMLA was enacted to prevent.” Accordingly, the appeals court found a genuine issue of fact remained as to whether the plaintiff would have been fired regardless of whether she took FMLA leave.
Sometimes you just cannot make these cases up.

Mitchell H. Rubinstein

No need to reinstate employee before discharging for cause under FMLA

(Daugherty v Wabash Center, ___F.3d___(7th Cir. August 14, 2009), is an unusual FMLA case. Plaintiff contended that his employer was “absolutely prohibited from terminating him” while he was out on FMLA leave. He also claimed an employer who discovers a reason to fire an employee while the employee is out on leave must first reinstate him upon conclusion of his medical leave before discharging him. The Seventh Circuit disabused the plaintiff of these notions. The FMLA only entitles employees to the same position they would have otherwise been entitled to, so “an employer may terminate an employee—even when on leave—if the employer discovers misconduct that would justify termination had leave not been taken.” Such was the case with the plaintiff here, where it was undisputed that he had performance issues and he presented no viable defense to the employer’s discovery that he deleted thousands of company computer files and purchased computers on the employer’s account that were delivered to his home. Further, while the plaintiff was on leave, the employer requested that he turn over his keys and computer passwords. The plaintiff insisted that by making these requests, the employer was asking him to “work.” The appeals court dismissed this contention as well, rejecting the employee’s claim that he was unlawfully discharged for refusing work while on medical leave.

Mitchell H. Rubinstein