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Posts Tagged ‘FMLA’

DOL Guidance On No Fault Attendance Policies

Posted on: September 21st, 2018

By: Joyce Mocek

The Department of Labor (DOL) Wage and Hour Division issued a new opinion letter on an employer’s no-fault attendance policy which effectively froze an employee’s attendance points that had accrued prior to taking the FMLA leave.  The DOL maintained that the no-fault attendance policy did not violate the FMLA if it was applied in a non-discriminatory manner, and applied consistently with other types of leave.

The FMLA prohibits employers from “interfering with, restraining, or denying” an employee’s exercise of FMLA rights, and prohibits employers from “discriminating or retaliating against an employee.. for having exercised or attempted to exercise FMLA rights.”  29 CFR 825.220.  In its opinion letter, the DOL noted that employees cannot accrue points for taking FMLA leave under a no-fault attendance policy.  Further, the FMLA does not entitle an employee to superior benefits simply because they take FMLA leave.

In the opinion letter, the DOL advised that since the employee’s number of accrued points remained frozen during the FMLA leave the employee neither lost a benefit that accrued prior to taking the leave, nor accrued any additional benefit which he or she would not have been otherwise entitled.  The DOL thus advised that this policy would not violate the FMLA.  However, the DOL noted that if the employer counted other types of leave (i.e. active service) under its no-fault policy, then the employer may be discriminating against employees that take FMLA leave as this inconsistency would violate the FMLA.

Employers should be mindful of this recent DOL opinion letter guidance and review their no-fault attendance policy to ensure compliance and consistency with other leave policies.

If you have any questions or would like more information, please contact Joyce Mocek at [email protected].

Is Your Attendance Policy Too Rigid?

Posted on: September 6th, 2018

By: Christopher Curci

Employers need to be mindful of both the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) when considering how to enforce their attendance policies.  When an employee requests time off from work to attend to a medical condition, most employers will consider the request as one for medical leave under the FMLA.  However, what happens if the employee has exhausted his or her FMLA leave or is not eligible for FMLA leave.  Many employers will simply conclude that the employee is not eligible for FMLA leave without considering whether the ADA requires the leave as a reasonable accommodation.  This common mistake often results in a violation of the ADA.

For example, in August 2018 the EEOC filed a lawsuit against Stanley Black & Decker for terminating an employee who took leave for medical treatments related to her cancer.  To qualify for FMLA leave, the employee must have been employed with the company for at least one year and worked at least 1,250 hours during the prior year.  In the Stanley Black & Decker lawsuit, the employee requesting leave had been employed for less than one year.  When she asked Human Resources what her options were to receive her medical treatments, she was correctly told that she was not eligible for FMLA leave.  However, Human Resources did not consider whether the requested leave was a reasonable accommodation under the ADA.

What happened?  The employee exceeded her allowed vacation days to undergo her cancer treatments and Stanley Black & Decker terminated her employment for excessive absenteeism in violation of its attendance policy.  Then what happened?  The EEOC filed a lawsuit against Stanley Black & Decker for violating the ADA.

Per the EEOC, Stanley Black & Decker’s attendance policy “does not provide exceptions for people who need leave as an accommodation to their disability.”  EEOC Regional Attorney Debra M. Lawrence said, “Employers can run afoul of the ADA if they have a rigid attendance policy that penalizes employees taking leave as a reasonable accommodation for their disabilities.”

Inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.  The take away: when an employee requests leave due to a medical condition, employers must consider both the FMLA’s leave requirements and the ADA’s reasonable accommodation requirements.

Christopher Curci practices Labor & Employment law in Pennsylvania and New Jersey and is a member of  Freeman Mathis & Gary’s Labor and Employment Law National Practice Section.  He represents employers in litigation and advises clients on all aspects of employment law.  He can be reached at [email protected].

 

Georgia Employers Must Become Familiar With State’s New Paid Leave Law

Posted on: July 9th, 2018

By: Will Collins

Across the country, there are an increasing number of state laws requiring that employers provide paid sick leave, including paid leave for the care of a family member. For instance, under the Georgia Family Care Act, which went into effect in July of 2017, employees who work at least 30 hours per week and receive a paid sick leave benefit may use up to five (5) days per calendar of that paid leave to care for “immediate family members.”  This includes the employee’s child, spouse, grandchild, grandparent, parent, or “any other dependents as shown on the employee’s most recent tax return.”

To be clear, the Act, which applies to the State of Georgia and all of its political subdivisions and instrumentalities as well as all employers with twenty-five (25) or more employees, does not create an obligation to provide sick leave, but instead requires covered employers that elect to provide paid sick leave to allow their employees to use a portion of that leave to care for immediate family members.

Georgia is just one of several states, including New York, expanding paid family leave obligations. While Georgia stopped short of mandating paid sick leave, eleven (11) other states have laws addressing paid leave policies. As a result, employers must be mindful of state law requirements as well as unpaid leave obligations under the Family Medical Leave Act (FMLA).

If you have questions about your leave policy or leave obligations, please contact one of the attorneys in our National Labor and Employment Practice Group to help you navigate the state and federal regulations and answer questions as they arise.

To FMLA or not FMLA, that is the question…

Posted on: November 10th, 2017

By: Christopher M. Curci

FMLA and ADA leave questions are some of the most frequent that we receive from our clients.  Deciding whether an employee’s absence should be designated as FMLA leave, or granted as a reasonable accommodation under the ADA, is a legal land mine.

Fortunately, at least one federal judge in Pennsylvania recognizes the employer’s dilemma.  In Bertig v. Julia Ribaudo Healthcare Group, LLC, the employee suffered from bladder cancer and asthma, which are disabilities under the law.  She requested and was granted one month of FMLA leave in May of 2012.  She returned to work in June of 2012 as planned.

Beginning in April of 2013 and continuing through April of 2014, the employee called out sick thirteen times for various reasons, such as foot pain and a sore throat. She was terminated for violating the company’s attendance policy.  The employee filed suit alleging that she informed management that her absences were related to her disabilities, therefore her absences should have been designated as FMLA leave.  She also brought a claim for failure to accommodate her disabilities under the ADA.

The Court ruled in favor of the employer. The employee admitted during her deposition that ten of her thirteen absences were unrelated to her disabilities.  Because her absences were not disability-related, her termination did not violate the FMLA or ADA.  But, the most important takeaway in this case is the Court’s implication that the employer was not obligated to make further inquiry as to whether those absences were related to the employee’s disability before it made the decision to terminate her employment.  That burden fell on the employee given the totality of facts here.

While this decision is very fact specific, it is nonetheless a win for employers who struggle with FMLA/ADA leave requests. Just because an employee took FMLA leave in the past for a disability does not necessarily mean that the employer has a burden to inquire whether subsequent absences are related to that disability – especially when the absences occurred ten months later and the employee gives non-disability related reasons for the absences.

All employers should have written FMLA and ADA policies advising employees of their FMLA and ADA rights, and should document reasons for employee absences. Christopher M. Curci represents employers in litigation and advises his clients on all aspects of employment law.  If you need help with this or any other employment issues, he can be reached at [email protected].

Third Circuit Reminds Employers To Draft Compromise Agreements Carefully

Posted on: October 6th, 2017

By: Mark C. Stephenson

On August 12, 2104, Craig Zuber suffered a work-related injury, and then filed a workers’ compensation claim and took medical leave. He returned to work on August 14 and requested a further week of medical leave on August 17, 2014, which was granted. Zuber returned to work on August 26. On September 10, department chain Boscov’s fired Zuber. Six months later, on April 8, 2015 Zuber signed a Compromise and Release Agreement before the PA Department of Labor and Industry Workers’ Compensation office. In response, Zuber sued under the FMLA and Pennsylvania common law, which the federal district court dismissed based on the agreement’s express terms.

Boscov’s countered by contending that Zuber’s suit was barred as the result of the compromise reached in the state administrative proceeding. The agreement stated that “Employer and Employee intend for the [Agreement] to be a full and final resolution of all aspects of the … alleged work injury claim and its sequela whether known or unknown at this time.” The agreement further stated that “Employee is forever relinquishing any and all rights to seek any and all past, present and/or future benefits in connection with the alleged work injury,” and required the Employee to acknowledge that if the agreement were to be approved by a workers’ compensation judge, his claim would be closed forever and that his appellate rights waived.

Looking to solely to contract law, the Third Circuit rejected Boscov’s expansive reading of the agreement’s waiver provision as well beyond the contemplation of the parties in reaching their compromise of claims. Boscov’s argued that the term “sequela,” commonly understood as a medical term referencing the aftermath of sickness or injury, encompassed any and all rights that Zuber may have had to maintain a legal claim against the Employer arising from his work injury, no matter how distantly. The Third Circuit found support in its narrow reading of the agreement in the document’s structure, which was expressly stated to address Zuber’s work-related injuries only, and a common sense reading of the workers compensation case release and its limited purpose.

The decision serves as a useful cautionary warning to employers to be clear when stating what rights employees waive when compromising their claims. Here, post hoc, Boscov’s tried and failed to recast a limited agreement into a global resolution of claims between the parties. The Third Circuit makes clear that it will not allow employers to beat a narrow shield secured in settling a lesser claim into a broad sword to defeat an employee’s ensuing claims that are well outside the intended scope of the parties’ compromise.

If you have any questions or would like more information, please contact Mark C. Stephenson at [email protected].