HR 101: Don't suggest "No More Hysterectomies" to a woman on FMLA

In my years of practicing employment law, I've drafted several employee handbooks and Family and Medical Leave Act (FMLA) policies for employers. The policies I draft are thorough. But just the other week, it occurred to me that I should probably add some language to the effect that supervisors should...

Don't estop believing: employer backs itself into FMLA claim for ineligible employee

I've written before about the FMLA's unique rules for when an employer is covered and when an employee becomes eligible to take leave. The FMLA covers any private employer that has 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding...

Horseshoes, hand grenades and....FMLA eligibility?

And here I thought close only counted in the first two... Who knew that close enough is good enough under the Family and Medical Leave Act (FMLA) when meeting the 1,250-hour eligibility requirement? Apparently, the Second Circuit Court of Appeals in this recent decision . In Donnelly v. Greenburgh...

How long is too long for a medical leave of absence?

Last year, I suggested that the ADA has swallowed the FMLA for employee medical leaves : The recently amended ADA is expansive enough to cover most medical conditions . If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during...

Is "casual conversation" of a parent's health enough to trigger FMLA?

Last month, in this post , I addressed a recent opinion in which the court held that the words "Emergency Room," when uttered by an employee to his employer are enough to put the employer on notice -- at least initially -- that the employee needs leave under the Family and Medical Leave Act...

No call, no show, no FMLA

Just because an employee makes a request for FMLA leave does not excuse an employee from complying with an employer's attendance policies. According to section 825.302(d) the FMLA's regulations : An employer may require an employee to comply with the employer's usual and customary notice...

FMLA Back Pay Includes Overtime

In Pagan-Colon v. Walgreens of San Patricio , 2012 U.S. App. LEXIS 18595 [ enhanced version available to Lexis.com subscribers ], the First Circuit held as a matter of first impression that an award of back pay under the FMLA includes overtime. A jury entered judgment in favor of the plaintiff on his...

DOL Issues Guidance on FMLA for Adult Children

Most people know that FMLA covers leave to care for a son or daughter who is under 18 and has a serious health condition. But, did you know that FMLA also covers a child who is "18 years of age or older and incapable of self-care because of a mental or physical disability?" Last week...

Employer's Bane: Unpredictable FMLA Leave. Is There a Solution?

Employers, has this ever happened to you? An employee in a critical-but-inflexible position -- say, a customer service representative -- asks for "intermittent" leave under the Family and Medical Leave Act. If the intermittent time off is "scheduled," it's usually not too...

FMLA Compliance Is Not as Easy as the DOL Says [Poll Results]

In celebration of the FMLA's 20th anniversary, the Department of Labor released the results of a survey of employers on their experiences managing the statute. According to the DOL, " employers generally find it easy to comply with the law , and ... the vast majority of employers, 91 percent...

Posting Vacation Pics on Facebook While on FMLA Is a Bad Idea

The FMLA turned 20 last week and there has been a flurry of articles and posts discussing how the FMLA has changed the workplace, whether it imposes too high of a burden on employers, and predicting how it will likely continue to evolve. Academic commentary aside, though, we all know that the FMLA...

It's Time to Fix the Family and Medical Leave Act -- Here Are Some Suggestions

Dear Congressperson: I know you are busy, but I am hoping you can take a few minutes out of your sequester stuff to help with the Family and Medical Leave Act, as amended by the National Defense Authorization Act of 2008, as amended again by the National Defense Authorization Act for Fiscal Year...

Family and Medical Leave Act Amendments May Impact Company Policies

Family and Medical Leave Act (FMLA) policies have been the subject of many changes over the past several years. The FMLA entitles an eligible employee to take up to 12 weeks (and in some situations 26 weeks) of unpaid leave during a 12-month period for a qualifying reason. The addition of the military...

Is This the Worst Fake Doctor’s Note Ever? And What Could You Do About It?

Buzzfeed recently published this note, which an employee provided asking his boss for a day off from work. Not only did the employer refuse the time off, but, as you can see above, the employer edited the note, remarked on all of the typos, errors, and misspellings, and returned it to the employee with...

DOL Guidance Clarifies FMLA Rights for Same-Sex Couples

It has been nearly two months since the U.S. Supreme Court nullified Section 3 of the Defense of Marriage Act ("DOMA"). Yet, the Administration has been largely silent on its interpretation of how the Supreme Court's decision affects the 1,100 plus federal laws that use the term "spouse...

Enforce Your Employee Call-In/Notice Requirements -- Even for FMLA Leave

In that handbook of yours should be a page -- maybe a few lines -- on an employee's responsibility to notify you if they are going to miss work. Who to call, when to call, that kind of stuff. A recent case from the Sixth Circuit ( this one ) [ an enhanced version of this opinion is available to...

FMLA Now Covers Same-Sex Spouses (Sort Of)

Ever since the Supreme Court invalidated the Defense of Marriage Act in U.S. v. Windsor [ an enhanced version of this opinion is available to lexis.com subscribers ], there has been a lot of hand-wringing over what the decision actually means and its impact on our employment laws. Windsor held that DOMA’s...

When an Extended Leave of Absence is NOT a Reasonable Accommodation

Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason . For one, the EEOC says that hard-capped leave of absence policies violate the ADA . For another, if an employee, returning from an FMLA leave, asks for a few more weeks of leave, what’s...

Is An “Unlimited” Leave Policy Good Business For You?

by Annemarie Cleary A growing number of businesses are considering “unlimited” leave policies for their exempt employees. Unlimited leave policies are excellent recruiting and retention tools that can foster a culture of trust and productivity at the right business. But, the anticipated...

New Bill in Congress Will Revamp FMLA to Cover Smaller Employers

How about cutting the 50-employee requirement for covered employers in half? So, if you have 25 or more employees working within 75 miles of one another, they would be eligible to take leave under the Family and Medical Leave Act. And that's just part of the Family and Medical Leave Enhancement...

Firing a Sick Employee Just Before She Is FMLA-Eligible Is Very Risky

So, check this out. I read this case yesterday about an employee who provided her company with a November 12 doctor's note, requesting that her hours be reduced due to her high-risk pregnancy. The employee would have become eligible for coverage under the Family and Medical Leave Act on November...

The Importance of Communication During FMLA Leave

How many times has an employee provided you with an incomplete Family and Medical Leave Act certification? Oh, I don't know, maybe a missing return date... If the FMLA leave is foreseeable , then the employee must provide the employer with the anticipated timing and duration of the leave. However...

Changes Ahead for FMLA Spouse Definition

The Department of Labor (DOL) will soon publish a Notice of Proposed Rulemaking regarding the definition of "spouse" under the Family and Medical Leave Act (FMLA). The new rule will enlarge the definition of spouse and likely simplify administration for employers. In August 2013, the DOL issued...

Third Circuit: Mailing FMLA Notice Not Enough for Summary Judgment?

Sometimes the most mundane tasks can make or break your case. Here's something I never thought I'd say: Big decision from the Third Circuit about how to mail FMLA notices! Read the opinion in Lupyan v. Corinthian Colleges, Inc. (for my Pennsylvania readers, the Third Circuit is our jurisdiction...

FMLA 101: Don't Make an Employee Work During Leave. Just Don't.

Really. It's a bad idea. Like my youngest son using chopsticks and a fork at the same time to eat pho . Ok, not that bad. But, definitely blogworthy. I read this case over the weekend about an employee who, while on maternity leave under the Family and Medical Leave Act, was required to...