Employee's Headache No Excuse For Insubordination

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Under the FMLA, an employer's obligation to provide leave arises only after an employee gives notice that he or she needs FMLA leave. However, it is well-established that an employee need not explicitly mention the FMLA when requesting leave. Rather, an employee's notice is sufficient if it gives the employer enough information to reasonably conclude that the employee may need leave for an FMLA-qualifying reason. Determining whether an employee's request for leave meets this requirement is a difficult proposition, particularly when the employee appears to be using the request to avoid instructions or shield himself from discipline. A recent decision of the 6th Circuit Court of Appeals sheds some light on the subject, and affirms that an employee cannot avoid discharge for insubordination merely by claiming that he had a headache and needed to go home. Gipson v. Vought Aircraft Industries, Inc. (.pdf).

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DOL to Conduct "FMLA survery": Is More Regulatory Change on the Horizon?

survey pic.jpgOn the campaign trail, then candidate Barack Obama promised to work aggressively on work-family balance if he was elected president.  In doing so, he clearly signaled a movement toward pursuing additional rights for employees to permit them to better balance their workplace duties and their personal and family lives.  This "movement," however, has been stalled by the health care debate, the conflict in Iraq, and the Gulf Oil mess.

Yesterday, the Administration signaled that its commitment to work-family balance is back on track. 

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Cleaning Up Mom's Flooded Basement Not Protected by FMLA

Flood insurance pic.jpgFor employers, it pays to listen closely to the reason for which an employee requests time off, since the reason may not always be covered by the FMLA.  Kind of like occasions when the employee tells you he needs time off to clean his mother's flooded basement.

Take Joe Lane, a medical technologist for Pontiac Osteopathic Hospital.  Joe, who lived with his mother, sought and was granted FMLA intermittent FMLA leave for six months to care for his mom, who suffered from diabetes, high blood pressure, weight loss and arthritis.  He needed leave from time to time to provide her food and transport her to doctors' appointments, which he did without issue for the next four months.

For Joe, when it rains, it pours.  Literally.  Right into his mother's basement.  Joe was absent for four consecutive days and, in violation of the Hospital's personnel policies, he failed to call in his absences.  Thereafter, he informed the Hospital that he would need additional time off to clean up flooding in his mom's basement.  He claimed that the "flood cleaning days" should be excused because his mother had hepatitis and the stagnant water was a "breeding ground" for the disease.  The Hospital disagreed and fired him.

At that moment, Joe's FMLA claims went down the drain. 

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The Massachusetts Same-Sex Marriage Rulings And The FMLA

The Department of Labor's recent Administrative Interpretation regarding FMLA leave for those acting in loco parentis to a child placed the spotlight on the application of FMLA leave to same-sex couples with children. However, the ruling did not address how the FMLA applies to situations where an employee seeks FMLA leave to provide care not for a child, but for a same-sex partner or spouse. However, two recent ruling by a federal court in Massachusetts may redefine the term "spouse" for purposes of FMLA leave, at least in states that recognize same-sex marriages. 

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Appeals Court Rejects Claim For Long-Term Intermittent Leave

Managing long-term intermittent leave has long been one of the central problems for employers administering FMLA leave. Particularly problematic is the employee who presents a certification suggesting that he or she will need unscheduled leave with little or no notice to the employer over a period of months or years based upon self-diagnosed, unverifiable symptoms such as pain or fatigue. A recent decision by the 8th Circuit Court of Appeals suggests that, at least in some cases, such a leave request need not be granted because the need for frequent, unscheduled, unpredictable leave over an extended period of time can render an employee unqualified for duty. Wisbey v. City of Lincoln, Neb.

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The Importance of Clear, Accurate Notices

Two recent federal appeals court decisions highlight the importance of providing employees with clear, accurate information about their FMLA rights. First, the U.S. Court of Appeals for the Eighth Circuit recently held in Kobus v. The College of St. Scholastica, Incthat a painter employed by the college could not prevail on his FMLA claims because he failed to return a completed medical certification form confirming that he had a serious medical condition. The court focused on the fact that the college's policies and the plaintiff's supervisor clearly advised the plaintiff of the certification requirement. 

On the other hand, the U.S. Court of Appeals for the D.C. Circuit ruled in McFadden v. Ballard Spahr Andrews & Ingersoll, LLP (.pdf) that a plaintiff could proceed on her claim that her employer interfered with her FMLA rights by giving her incorrect information about the amount of FMLA leave she had used. 

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Podcast No. 13: Interpreting The New DOL Interpretation Of "In Loco Parentis"

On June 22 the U.S. Department of Labor issued its first Administrator Interpretation under the FMLA, "clarifying" how the FMLA applies to requests for leave by those who provide care for a child without a biological or legal relationship to the child. In this month's podcast, we explain what's new in this interpretation, what isn't, and what it means for employers.

 

Sec. Solis Says New Interpretation Expands FMLA

Well, we stand corrected. While we said in our summary of the DOL's new Administrator Interpretation (.pdf) on the issue of FMLA leave for those standing in loco parentis for a child that the new interpretation "arguably does not change existing law," Secretary of Labor Hilda Solis evidently thinks that it does. Writing in the Huffington Post, Secretary Solis had this to say about the new interpretation:

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He Shoots . . . and Misses! Does the World Cup Invite FMLA Abuse?

World Cup soccer ball pic.jpgA couple weeks ago, as I was preparing a witness for his deposition (in a Title VII and FMLA case), it dawned on both of us that his deposition would take place mere hours after the deciding Game 6 of the Stanley Cup Playoffs.  Upon this realization, his face grew a bit pale, and he began wondering out loud whether he would be in the best shape for a deposition the day after a Chicago Blackhawks victory.  [Insert here: visions of a late night at the local pub.]

No worries -- both my client and the Blackhawks came out on top.  However, the more I considered the above exchange, the more I wondered whether this scenario raises a common issue for employers as they administer FMLA leave -- Do major sporting events, such as the Stanley Cup and ongoing World Cup, invite widespread abuse of FMLA leave?

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DOL Permits FMLA Leave for Gay Parents and Others Caring For a Child

On June 22, 2010, the U.S. Department of Labor issued an Administrator Interpretation (.pdf) to clarify the definition of a “son or daughter” under the FMLA to ensure that an employee who seeks time off work to care for a child receives FMLA leave regardless of the employee’s legal or biological relationship with the child.  Although the DOL interpretation arguably does not change existing law, many consider it a huge win for nontraditional families, including families in the lesbian-gay-bisexual-transgender (LGBT) community who, the DOL asserts, “often in the past have been denied leave to care for their loved ones.”

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