Recently in Family Medical Leave Category

September 5, 2014

Sixth Circuit Reverses Lower Court Decision on FMLA Issue

office-chair-1431952-m.jpgThe Sixth Circuit Court of Appeals found that a woman who claimed a Family and Medical Leave Act (FMLA) violation was entitled to a judgment in her favor. During the trial in this case, the jury awarded the woman $173,000, but that amount was reduced by the judge to $90,788. This decision was reversed by the Sixth Circuit, and she was awarded $173,000.

Wallace v. Fedex Corp.

Wallace v. Fedex Corp. is a classic example of the impact that the violation of an employee's rights can have on an organization. The Sixth Circuit explained that, although FedEx has a right to ask an employee to provide a medical certification in relation to an FMLA request, it must also explain the consequences to an employee if he or she fails to provide such documentation. In this instance, FedEx failed to inform the plaintiff about what would happen if she did not provide a certification.

Ms. Wallace was employed by FedEx as a paralegal for over two decades. Unfortunately, she became ill, which resulted in a series of medical difficulties that affected her ability to attend work as she was regularly scheduled. After discussing her issues with her employer, FedEx finally agreed to provide Ms. Wallace with the documentation necessary to proceed with leave under the FMLA.

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May 2, 2014

Sixth Circuit Finds That Telecommuting Is a Reasonable Accommodation in EEOC v. Ford Motor Company

In a recent ruling, the Sixth Circuit Court of Appeals expanded the instances where telecommuting could be considered reasonable accommodation for employees who were disabled.

laptop-work-1260785-m.jpgEEOC v. Ford Motor Company, Jane Harris was hired in 2003 to be a resale buyer at Ford, a position that required her to be the intermediary between steel suppliers and "stampers," or companies that used steel to manufacture parts for Ford. One role of the resale buyer was to respond to emergency supply issues in order to ensure that there was no gap in steel supply to the parts manufacturers. While some individual tasks, like updating spreadsheets and periodic site visits, were involved, the core of the job was to group problem solve, requiring the buyer to be available to interact with members of the resale team, suppliers, and other members of Ford when there were problems. Ford managers had determined that these types of meetings were best conducted face-to-face, and that email and teleconferencing did not work as substitutes.

Harris suffered from a condition called irritable bowel syndrome, which caused her significant distress. On her worst days, she was unable to drive to work or stand up from her desk without soiling herself. As a result, she began to take leave under the Family and Medical Leave Act (FMLA). During her employment, Harris was considered to be a competent, but not perfect employee. Performance reviews taken from 2004 to 2008 rated her as "excellent plus" and noted that she worked diligently with "minimal supervision." However, she received low rankings on her contribution assessment, and on most job-related skills in 2007 and 2008. After she began taking FLMA leave, her absences hurt her job performance. In order to help her keep up, Harris's supervisor let her do a flex-time telecommute schedule where Harris worked evenings and weekends to keep up with her work. However, Ford did not credit her with work performed outside of core business hours because she could not engage in team problem solving or access suppliers for information.

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March 12, 2014

Seventh Circuit Finds That Employee Who Traveled to Las Vegas Was Covered By the FMLA in Ballard v. Chicago Park District

Not long ago, the Seventh Circuit Court of Appeals found that a woman's trip to Las Vegas during her Family and Medical Leave Act (FMLA) time off from work did not violate the requirements of the law.

las-vegas-nights-3-753037-m.jpgThe FMLA permits a "qualified" employee to take up to 12 weeks of unpaid leave for medical reasons, in order to care for a sick family member, or in the case of pregnancy or adoption. Qualified employees are those who work at companies with 50 or more employees and have worked more than 1,250 hours within the preceding 12 months.

In Ballard v. Chicago Park District, Beverly Ballard was a Chicago municipal employee who was the primary caregiver of her mother, who suffered from end-stage congestive heart failure. Ballard lived with her mother while she began to receive hospice support through Horizon Hospice and Palliative Care. Ballard's care of her mother included cooking meals, administering insulin and other medications, draining fluid from her heart, bathing and dressing her, and helping her go to bed. In 2007, Ballard's mother informed Horizon that one of her end-life goals was to go on a trip to Las Vegas. The trip was funded through the Fairygodmother Foundation and was expected to last six days in January 2008.

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March 5, 2014

Sixth Circuit Reverses Lower Court's Judgment in FMLA Case Clements v. Prudential Protective Services, LLC

The Sixth Circuit Court of Appeals recently reversed a lower court decision in favor of the employer on an issue involving rights under the Family and Medical Leave Act (FMLA). In Clements v Prudential Protective Services, LLC, the Court found that the employer's failure to inform a pregnant employee of her FMLA rights, and to reinstate her to either her former position or to an equivalent position after her leave, wrongfully interfered with her rights under the FMLA.

guard-1063331-m.jpgTelitha Clements was hired by Prudential Protective Services as a security guard in 2006, and worked at the New Center, Fisher and Kahn buildings in Detroit, Michigan. Throughout her employment, she had one supervisor, Lamont Lively. In 2008, Clements became pregnant with her second child, whom she gave birth to in June 2009. She gave Lively notice of her pregnancy, and her last day at work before her leave was May 23, 2009. Lively told Clements to contact him when she was ready to return to work, and he would put her back on schedule. Although Lively later claimed that Clements needed to contact the main office to properly schedule her maternity leave, neither Clements nor Lively contacted the main office. Neither Clements nor Lively filled out any paperwork, either. Clements was not paid for any part of her time off.

Clements tried several times to contact Lively in early July 2009, an estimated six weeks after her maternity leave began, to request to be returned to the schedule. She could not reach him due to his leave of absence to deal with a personal matter. Instead, a woman named "Sabrina" relayed messages between Clements and Lively. Lively told Sabrina to inform Clements that the number of hours scheduled for security guards at the complex had been scaled back due to a lack of business and that Lively could not return Clements to the schedule at that time. While Lively claimed later that he directed Clements to report to the main office for an assignment at another site, Clements stated that she never received the information.

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June 12, 2012

How the Proposed Pregnant Workers Fairness Act Might Affect Female Kentucky Workers

The Pregnancy Discrimination Act (PDA) was added to the Civil Rights Act of 1964 to ensure that women were not discriminated against while pregnant. The act prohibits employers from refusing to hire a woman because she is pregnant; requires an employer to treat a pregnant woman the same as someone with a different temporary disability if she is unable to work temporarily; and requires an employer to provide the same type of health insurance at the same rate as other employees.

But there are some issues that the current act does not cover, which is why legislators introduced a new bill called the Pregnant Workers Fairness Act in May 2012. This act would essentially afford pregnant women the same protections and flexibility that those with disabilities are given. Under the current act, many employers are not accommodating to pregnant women because they don't have to be. The Americans with Disabilities Act (ADA) does not cover pregnant women because they are not actually disabled, and some companies take advantage of the difference. Many cases illustrate this discrepancy. Noreen Farrell, executive director of Equal Rights Advocates (ERA) gives this example: "We see that male firefighters who throw out their backs are given desk jobs, but women who are pregnant don't get them...There is an ability to provide accommodations, but employers don't want to."

Some women don't even request an accommodation because they are afraid their boss will force them to take their paid time off guaranteed by the Family Medical Leave Act (FMLA) too soon. If a woman takes off too soon, she may end up having to take unpaid time right before and after her delivery, something many families cannot afford. Others who have asked have been ignored or fired.

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April 17, 2012

Kentucky Workers Being Worked Too Hard in Warehouses

Amazon is known worldwide for its competitive pricing and efficient shipping. Based in Seattle, Washington, the company has over 70 warehouses around the world and employs a large number of Kentucky workers in its Campbellsville site. On paper, a job with Amazon looks like a great deal. They offer a decent hourly wage, 401(k) with matching and health insurance for full-time employees.

But working for the internet giant also has a down side, as some Kentucky employees have discovered. While Amazon touts its warehouse safety records as being better than the average for warehouses and even department stores, some of their actual employees may disagree. They say the number of reported injuries is kept lower by Amazon in a couple different ways. Some employees are afraid to report incidents for fear of being written up and potentially losing their job. Others are told to attribute a certain injury to a pre-existing condition even though the current injury was work-related. At least some of the Amazon warehouses have their own medical personnel to treat workplace injuries so the employees are not seen by outside doctors, which might lead to a federal report.

Extreme temperatures are also an issue in the Amazon warehouses, as they are in other facilities. But Amazon seems hesitant to allow workers to take more breaks or to work at a slower pace, even when the temperature gets very high. An Amazon warehouse in Pennsylvania was under scrutiny when it was discovered that ambulances were parked outside the building, just waiting to take workers suffering from the heat to the hospital. One Kentucky employee who used to work as a safety official was concerned about the Campbellsville employees when temperatures reached 100 degrees, but he never talked to management about slowing production because he knew it wouldn't happen. To keep employees safe in the heat, he had people walking around offering them Gatorade. Amazon did install air-conditioning in its Lexington warehouse last year, and the rest of their Kentucky facilities should have air-conditioning this year.

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November 15, 2011

Family Medical Leave Act

The Family Medical Leave Act (FMLA) was enacted in 1993 to allow employees to take time off work without pay for certain family or medical reasons. In order to qualify for FMLA, an employee has to have worked for the employer for 12 months over the previous seven years, and worked 1250 hours during the last 12 months. Employers that have fewer than 50 employees who have worked 20 weeks during the last year are not required to provide leave under this act. According to the Department of Labor website, qualified employees are eligible for 12 weeks of unpaid leave for the following reasons:

  • for the birth and care of a newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for a spouse, son, daughter, or parent with a serious health condition;
  • to take medical leave when the employee is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

An additional 12 weeks of leave are available to certain relatives of injured service members.

FMLA pertains to several different types of situations, as shown by recent cases in the news. In Southern California, an executive chef for a country club went into septic shock after surgery and was in a medically induced coma for two months. While he was ill, the country club replaced him with another chef. Under FMLA, the country club was required to keep his job for him until he returned. Late last week, the U.S. District Court agreed with Mr. Caupain, the chef, and granted summary judgment in his favor. This means the case will move forward to the damages phase without a trial to determine if Mr. Caupin was wrongfully terminated under FMLA. The trial to determine damages is scheduled for January 2012.

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July 13, 2010

Dept. of Labor Clarifies the Definition of In Loco Parentis for FMLA Leave?

Kentucky employment lawyers are excited about the latest Administrator's Interpretation from the Department of Labor. On June 22, 2010 Deputy Administrator Nancy Leppink clarified when an employee standing in loco parentis may take FMLA leave for birth, bonding, and to care for the child.

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Typically, employees eligible for Family Medical Leave may take up to twelve weeks of leave each year to for the birth or placement of a child, to bond with a newborn or newly placed child, or to care for a child with a serious health condition. 29 U.S.C. ยง2612(a)(1)(A)-(C). In recent years, with ever expanding family units, more and more people wonder the extent of the definition in loco parentis.

As the opinion points out, Congress intended the definition of "son or daughter" to include children outside of traditional families, including "adoptive, step, or foster parents, their guardians or sometimes simply their grandparents or other relatives or adults." See S.Rep. No. 103-2, at 22.

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