Employment Law Observer

The intersection between an employer's obligations under the Family & Medical Leave Act (FMLA) and its enforcement of performance standards sometimes feels fraught with fear. However, nothing in the FMLA prohibits an employer from taking action against an employee for legitimate reasons, even when that employee is on or returns from a protected leave. Those were the issues before the Seventh Circuit Court of Appeals in Anderson v. Nations Lending Corporation decided on March 9, 2022.

In the spirit of the season—and keeping some semblance of normal—we are using our annual "12 days of the holidays" blog series to address new California laws and their impact on California employers. On this sixth day of the holidays, my labor and employment attorney gave to me: six geese a-laying and SB 1383.

Throughout the COVID-19 pandemic, the issue of whether an employer may lawfully terminate an employee who has contracted COVID-19 has continued to arise. Terminating an employee because they have contracted COVID-19 carries significant legal risk. Some employers might consider the decision to terminate an employee a safety measure meant to protect employees and customers from coming into contact with someone who has had the illness. But doing so may run afoul of several federal statutes, including the Families First Coronavirus Response Act (FFCRA), as well as the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA).

The U.S. Department of Labor (DOL) issued three opinion letters on January 7, 2020—one addressing the Family Medical Leave Act (FMLA) and two on the Fair Labor Standards Act (FLSA). The FMLA letter clarifies whether a combined general health district must consider employees of the county located in said health district when determining FMLA eligibility. As for the FLSA letters, one explores how a nondiscretionary bonus factors into an employee's regular rate of pay, while the other looks at whether per-project payments satisfy the salary basis test for exemption. Below, we take a closer look at each of these letters.

Since being enacted in the early 1990s, the Family and Medical Leave Act (FMLA) has provided meaningful protections for employees dealing with their own serious health issues or those of immediate family members through continuous and intermittent leave options. Human resource professionals and employment lawyers alike recognize how valuable intermittent leave is for employees needing periodic care; however, they also recognize this form of leave also is abused. Employers need to be able to effectively investigate suspected benefit abuse and discourage the dishonest use of the FMLA.

On August 8, 2019, the U.S. Department of Labor – Wage and Hour Division (collectively the "DOL") issued Opinion Letter FMLA2019-2-A, which interpreted the Family and Medical Leave Act of 1993 (FMLA) to include providing intermittent family leave for a mother to attend committee meetings related to the serious health conditions of her children. The Opinion Letter expands the scope of activities eligible for intermittent FMLA leave.

Employers seeking to juggle employee leave demands with their own regulatory compliance obligations received clarification from the U.S. Department of Labor (DOL). Specifically, the DOL published a clarifying opinion letter regarding the issue of whether an employer may delay the designation of leave that qualifies under the Family and Medical Leave Act (FMLA) and provide employees with leave beyond the 12-week statutory entitlement. The DOL ruled the employer cannot delay the designation.

A recent decision issued by the Massachusetts Supreme Judicial Court offers up a good reminder that what employers may consider FMLA abuse may not in fact be FMLA abuse under the law. That's exactly the scenario that played out in Richard A. DaPrato vs. Massachusetts Water Resources Authority.

For years, advocates in the Eleventh Circuit have expressed confusion over the term "similarly situated" when addressing claims of discrimination under the McDonnell Douglas burden-shifting analysis. In a rare move, the Eleventh Circuit sought to clear up "the mess" it had created through prior circuit court decisions. As a result of the Court's findings, employers—particularly those in Alabama, Georgia, and Florida—will have more clarity when evaluating possible discrimination claims.

Employers cannot force employees to take medical leave before they become eligible for FMLA leave. Nor can they lull an employee into believing they will be granted leave despite being ineligible, then terminate when they take leave. This seems like common sense, right? Hopefully so, but a recent Wisconsin district court case reminds us common sense does not always prevail in the workplace.

The Seventh Circuit Court of Appeals recently explained that an employee’s inconvenience from a neutral workplace policy or the employer’s discretionary denial of benefits cannot support a claim under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), or the Family Medical Leave Act (“FMLA”).

The Family & Medical Leave Act ("FMLA") grants employees leave in certain enumerated situations. The Fifth Circuit Court of Appeals recently held it also allows the employee and employer to strike an agreement that the employee will perform certain duties and responsibilities during the leave and receive compensation for it without creating an actionable interference claim under the FMLA.

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2018. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the sixth day of Christmas, my Labor and Employment attorney gave to me – six geese a laying and SB 63.

Last week the Seventh Circuit dealt a blow to the EEOC's continued position that medical leave is a reasonable accommodation when the leave is (1) of a definite, time-limited duration; (2) re-quested in advance; and (3) likely to enable the employee to perform the essential job functions upon return. The panel rejected that position, noting it glossed over the length of the requested leave, improperly transforming the ADA into "an open-ended extension of the FMLA."

You have complied with the Family Medical Leave Act by allowing an employee with a serious medical condition 12 weeks of leave. You even provided a few additional weeks even though he has exhausted all available leave. When the employee asks for three more weeks, and you think to yourself “the company has met its legal obligations and can terminate, right?” Wrong—according to the EEOC.