The intersection between the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”) is sticky, at best. Over the years, partners in my Firm and I have received phone calls that go something like this: “Hey, Lawyer. I have an employee who has been off work dealing with [insert medical condition]. He is supposed to be back next week, but now he is saying he needs more time off to deal with [aforementioned medical condition]. What do I do?” Good question. And the answer is not always clear.
This is precisely the set of circumstances the Seventh Circuit Court of Appeals considered in Severson v. Heartland Woodcraft, Inc., — F.3d —, 2017 WL 4160849 (Sept. 20, 2017). The short version of the opinion is that in the Seventh Circuit, long-term leave is not a reasonable accommodation under the ADA. The Seventh Circuit Continue reading →
An unemployment compensation hearing can be fraught with dangers for the unsuspecting or unprepared employer. Many employers disregard such proceedings as low risk because any benefits will be paid from the state’s unemployment insurance fund to which all employers must contribute. But the factual issues raised in unemployment compensation hearings closely relate to more significant sources of employer liability, such as the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. The recent decision of the Kentucky Court of Appeals in Hicks v. Kentucky Unemployment Insurance Commission, — S.W.3d —, No. 2014-CA-001061-MR, 2015 WL 7351398 (Ky. App. Nov. 20, 2015), illustrates the potential intersection between those seemingly distinct areas of law and the need for a forward-looking strategy to avoid future claims.
Tarsis Hicks worked as an interpreter for Fairview Community Health Center (“Fairview”). She assisted Spanish-speaking patients in communicating with medical staff. During her employment, Hicks received a diagnosis of breast cancer. She then took leave from work under the FMLA to undergo chemotherapy treatments. After exhausting her twelve weeks of FMLA leave, Hicks requested that Fairview allow her to work from home by Continue reading →
Many employers use the United States Department of Labor’s (“DOL’s”) certification forms when evaluating and authorizing employee requests for family and medical leave. A few months ago, the DOL revised those forms. If you use the DOL forms, make sure you are using the updated forms.
Since the regulations under the Genetic Information Nondiscrimination Act of 2008 (“GINA”) were enacted in 2011, we have advised employers to include GINA “safe harbor” language on their Family and Medical Leave Act (“FMLA”) certification forms. GINA generally prohibits employers from using genetic information to make employment decisions. If certain requirements are met, however, an employer will not be held liable under GINA if it acquires genetic information inadvertently. In particular, the GINA regulations state that if an employer includes language similar to the following in any request for medical information, any receipt of genetic information in response to the request will be Continue reading →
Earlier today, in Obergefell v. Hodges, No. 14-556, the U.S. Supreme Court declared, in a 5-4 ruling, that same-sex couples have a right to marry anywhere in the United States. Justice Anthony Kennedy, writing for the majority, stated that “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” Further, “the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” Prior to this ruling, fourteen states (including Kentucky) banned same-sex marriages.
This ruling is, of course, game-changing for individuals across the nation – impacting them on social, political and personal levels. The ruling will also influence Kentucky employers, whose practices and procedures inevitably need to be updated.
First, Kentucky employers will need to make certain administrative changes to ensure that same-sex spouses are covered. For example, employers might need to modify their enrollment or eligibility forms to ensure that health benefits are available to those with same-sex spouses. Second, Kentucky employers will need to Continue reading →
The U.S. Department of Labor (DOL) issued a final rule, effective March 27, 2015, changing the definition of spouse for purposes of same-sex spousal leave under the FMLA. The former rule, a “place of residence” rule, stated that an employer was required to provide same-sex spousal leave to qualified employees under the FMLA only if the marriage was enforceable in the employee’s state of residence. The new “place of celebration” rule states that same-sex spousal leave must be provided to qualified employees if the marriage is valid in the place where the marriage is performed. Therefore, under the new rule, if an employee is married in California (where same sex marriage is valid), but resides in Kentucky (where same sex marriage is not valid), the Kentucky employer must provide spousal leave to qualified employees.
Texas, joined by several other states, sued the DOL over the new rule and sought a preliminary injunction in federal court enjoining its enforcement. Texas argued that Continue reading →
The Department of Labor issued a final rule yesterday that extends FMLA protections to eligible employees in same sex marriages so long as the marriages are legal where the ceremonies were performed. This is the so-called “place of celebration” rule. The former rule authorized FMLA spousal leave only if same-sex marriage was valid in the employee’s state of residence (i.e. “state of residence” rule). Under the new place of celebration rule, if an eligible employee is married in a state that authorizes same-sex marriage, FMLA spousal leave is permitted even if same-sex marriage is not valid in the employee’s state of residence.
The issue of whether the FMLA permitted same-sex spousal leave arose after the United States Supreme Court ruled in United States v. Windsor, 133 S.Ct. 2675, 2693 (2013), that the Federal definition of marriage excluding same-sex marriage was unconstitutional. Courts had held that the Federal definition of marriage applied to FMLA spousal leave, even though the FMLA regulations stated the state’s law of the employee’s residence applied to determine the validity of the marriage. Since Windsor found the Federal definition of marriage unconstitutional, the FMLA definition of “spouse” applied. Many commentators were dissatisfied with the FMLA place of residence rule because Continue reading →
The U.S. Court of Appeals for the Sixth Circuit has dismissed a former employee’s Family Medical Leave Act (“FMLA”) interference claim because the employee failed to utilize her former employer’s call-in procedure related to absences.
In Ritenour v. State of Tennessee Department of Human Services, 497 Fed. Appx. 521 (6th Cir. 2012), the plaintiff was initially hired as a interim employee, but later became a full-time Clerk with the Tennessee Department of Human Services (“TDHS”). A few months after becoming a full-time employee, the plaintiff determined that she needed to take a leave of absence from her position to care for her son who suffered from a multitude of physical and mental health issues, including a bipolar disorder, suicide attempts, and behavior problems. Thereafter, the plaintiff and her superiors had several conversations with regard to her request for leave; however, no leave was actually granted by TDHS. Despite the plaintiff being absent from her employment for several weeks, the plaintiff and TDHS ultimately agreed that she would return to work on September 8, 2008. Plaintiff was provided a copy of the employee handbook which detailed the necessary steps to take in order to request a leave of absence, including the requirement that such leave request be put in writing. Plaintiff alleged that she put her request in writing; however, her superiors did not receive it.
The Plaintiff did not report to work from September 22 through 25, 2008 and she was ultimately terminated for job abandonment, which was defined as being absent from duty for more that three consecutive business days without giving notice to management and without securing permission to be on leave. Additionally, the TDHS employee handbook required employees to personally notify their superior(s) by telephone if they were going to be late for or absent from work. The plaintiff did not utilize this “call-in” procedure for her absences in September, 2008.
The plaintiff subsequently filed suit against TDHS, alleging interference with her right to take intermittent FMLA leave and retaliation under the FMLA. The U.S. District Court for the Middle District of Tennessee granted summary judgment in favor of TDHS, finding that, even assuming the plaintiff was entitled to take FMLA leave, there was no dispute that she failed to contact her supervisor related to her absences in September, 2008.
The Sixth Circuit affirmed the dismissal of plaintiff’s claims, finding that it was undisputed that plaintiff failed to follow TDHS’ “call-in” procedure and the enforcement of the job abandonment policy was not related to plaintiff’s request for FMLA leave because the policy applied to employees who are absent from work without approval for any reason.
It is also worth noting that the Sixth Circuit relied upon its previous decision in Allen v. Butler Cnty. Comm’rs, 331 Fed. Appx. 389 (6th Cir. 2009), in which it found that an employer could terminate an employee on FMLA leave for violating the more stringent requirements of a concurrently run paid sick leave policy, which included a “call-in” requirement. The Allen court noted that because the “call-in” procedures established the obligations of employees on any type of leave, whether pursuant to FMLA or not, the employer therein was not liable for interfering with the employee’s right to take FMLA leave.