This page contains entries under the topic: "FMLA" | Main
Ready for new FMLA regulations?
February 09, 2008 by Ross Runkel at LawMemo
Department of Labor's proposed amendments to its regulations under the Family and Medical Leave Act (FMLA) will be filed in the Federal Register on February 11, 2008. Comments must be received on or before April 11, 2008. The filing includes both proposed changes to previously-adopted regulations and a request for input on for new regulations implementing the new statute dealing with military family leave.
Notice of Proposed Rulemaking; Request for Comments (02/11/2008) [477 pages]
(1) Previous regulations are reorganized. There are substantive changes dealing with the definition of "serious health condition," required notices, joint employers, light duty, overtime, bonuses, substituting paid leave for FMLA leave, voluntary settlement of claims, employer's failure to designate absences as being FMLA leave, and other matters.
(2) DOL seeks public comment on issues to be addressed in final regulations dealing with military family leave. (Statutory amendments providing FMLA leave to care for a covered servicemember became effective January 28, 2008. A statutory amendment providing FMLA leave for "qualifying exigencies" arising out of a family member's active duty or call to active duty are not effective until DOL issues regulations defining "qualified exigencies.")
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Effective immediately, FMLA covers care for member of armed forces
January 30, 2008 by Ross Runkel at LawMemo
Amendments to the Family and Medical Leave Act of 1993 (FMLA) are effective on January 28, 2008.
The National Defense Authorization Act for FY 2008 (NDAA) was signed by the President January 28. Section 585 amends the FMLA to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a
"member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."
The NDAA also permits an employee to take FMLA leave for "any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation." By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining "any qualifying exigency."
DOL web site, including link to full text: http://www.dol.gov/esa/whd/fmla/NDAA_fmla.htm
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Multiple medical leave claims
May 11, 2007 by Ross Runkel at LawMemo
Michael Faust filed multiple claims against his former employer, all arising out of his back pain, and a note from his chiropractor:
- discharge in violation of his right to medical leave under the California Family Rights Act (CFRA) (a part of the California Fair Employment and Housing Act (FEHA))
- retaliation
- wrongful discharge
- disability discrimination
The trial court granted summary judgment for the employer,but the California Court of Appeal reversed as to most of Faust's claims. Faust v. California Portland Cement (California Ct App 05/10/2007)
Faust was experiencing severe back pain. His treating chiropractor provided a note recommending treatment and stating that he was "unable to perform regular job duties" for a month. Faust gave the note to his employer. In an exchange of voicemails the employer requested to speak to him about the chiropractor's report. Faust stated that the employer could speak to his wife, chiropractor, or workers compensation attorney, but the employer did not. Faust did not reply to a letter detailing perceived defects in the chiropractor's report. Later the employer discharged Faust, stating that his paperwork was "insufficient to sustain an approved absence."
The California Court of Appeal held:
- There was a triable issue on Faust's CFRA claims because the employer did not post notice or give notice to Faust of his CFRA rights, Faust provided notice of his need for CFRA leave, and Faust's chiropractor's report stated the reason for CFRA leave. Although the employer claimed that Faust unreasonably failed to respond to inquiries about his health, another possible inference is that the employer unreasonably refused to communicate with his designated representatives. The court rejected the employer's assertion that Faust's chiropractor was not a qualified health care provider.
- There was a triable issue on Faust's claim of retaliation for exercising CFRA rights because he presented a prima facie case, and the employer's assertion that it discharged him for insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.
- There was a triable issue on Faust's claim of wrongful termination in violation of public policy. Because he has viable claims for violation of the CFRA, "it necessarily follows" that he has a triable issue for wrongful termination in violation of public policy.
- There was a triable issue on Faust's claim of disability discrimination. There was evidence that the employer was aware of his orthopedic condition, that the employer rejected the chiropractor's recommendation of a leave, and that the employer discharged Faust. The asserted insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.
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FMLA comment period extended
January 29, 2007 by Ross Runkel at LawMemo
The deadline for comments on the FMLA has been extended to February 16 (it was February 2). [Federal Register Notice]
My previous entry on this:
Federal Register Notice: http://www.dol.gov/esa/whd/06-9489.pdf
Special DOL web site: http://www.dol.gov/esa/whd/fmlacomments.htm
The US Department of Labor has published a formal notice requesting comments on the Family and Medical Leave Act (FMLA). Instead of publishing proposed new rules for comment, DOL is first seeking comments on 12 substantive areas:
- (1) Eligible Employee
- (2) Definition of "Serious Health Condition"
- (3) Definition of a "Day"
- (4) Substitution of Paid Leave
- (5) Attendance Policies
- (6) Different Types of FMLA Leave
- (7) Light Duty
- (8) Essential Functions
- (9) Waiver of Rights
- (10) Communication Between Employers and Their Employees
- (11) FMLA Leave Determinations / Medical Certifications
- (12) Employee Turnover and Retention.
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FMLA Request for Information
December 05, 2006 by Ross Runkel at LawMemo
Federal Register Notice: http://www.dol.gov/esa/whd/06-9489.pdf
Special DOL web site: http://www.dol.gov/esa/whd/fmlacomments.htm
The US Department of Labor has published a formal notice requesting comments on the Family and Medical Leave Act (FMLA). Instead of publishing proposed new rules for comment, DOL is first seeking comments on 12 substantive areas:
- (1) Eligible Employee
- (2) Definition of "Serious Health Condition"
- (3) Definition of a "Day"
- (4) Substitution of Paid Leave
- (5) Attendance Policies
- (6) Different Types of FMLA Leave
- (7) Light Duty
- (8) Essential Functions
- (9) Waiver of Rights
- (10) Communication Between Employers and Their Employees
- (11) FMLA Leave Determinations / Medical Certifications
- (12) Employee Turnover and Retention.
Deadline for comments is February 2 2007.
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FMLA 50-employee threshold overcome by equitable estoppel
April 19, 2006 by Ross Runkel at LawMemo
Can an employee overcome the FMLA 50-employee threshold by using the doctrine of equitable estoppel? Minard v. ITC Deltacom (5th Cir 04/18/2006) says yes.
Family Medical Leave Act applies only when the employer has 50 or more employees.
Minard claimed that the employer told her she was eligible for FMLA leave, and therefore the employer should not be allowed to assert that the 50-employee threshold has not been met.
The 5th Circuit agreed, saying:
an employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an “eligible employee” and entitled to leave under FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage, if the employee reasonably relies on that representation and takes action thereon to her detriment.
The court remanded for findings on whether Minard actually relied.
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Fetching a car is not FMLA-protected leave
July 12, 2005 by Ross Runkel at LawMemo
The Family Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave to "care for" a family member with a serious health condition. So does that mean you actually have to "care for" the family member? The 9th Circuit says "Yes." Tellis v. Alaska Airlines (9th Cir 07/12/2005).
Charles Tellis' wife was having late-stage pregnancy difficulties. Then Charles' car broke down. Although he lived in Seattle, he had another car in Atlanta, so he flew there to drive the car back to Seattle. While he was gone he made several phone calls to his wife, and she gave birth.
Upon his return, Charles' employer discharged him for being absent without the required advance approval.
Charles claimed his absence was an FLMA-protected leave. The 9th Circuit disagreed.
According to Department of Labor regulations, "care for"
encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.
Charles argued that retrieving the car gave his wife psychological support, and his phone calls provided moral support and psychological support.
The 9th Circuit said "care for" "involves some level of participation in ongoing treatment of [the family member's] condition." Said the court, "Instead of participating in his wife's ongoing treatment by staying with her, he left her for almost four days."
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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