Family Medical Leave Act (FMLA)

Could Changing Your Mind About a Promotion After an Employee’s Use of FMLA Leave Equal Retaliation?

Posted on June 6, 2018 by Elaine I. Hogan

The Situation: An employer has talked with an employee about possibly putting him in a new sales position.  Before that can happen, the employee develops a medical condition which necessitates him being out of work for a month and taking FMLA leave. When he returns, he informs the employer that he will not be able to travel for a period of time. The employer then decides not to put him in the new position and ends up eliminating the position he is in.  Could the employee make a claim of FMLA retaliation?…

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EEOC Goes After Another Employer For Failing to Extend Leave

Posted on January 17, 2018 by Elaine I. Hogan

The Situation: An employee who has been out on leave asks for a several extra weeks of leave—putting her over the twelve weeks to which she is entitled under the FMLA. Does the employer have an obligation to consider this request under the ADA?…

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Is it Okay to Give Women More Parental Leave?

Posted on October 19, 2017 by Elaine I. Hogan

The Situation: A company implements a new parental leave policy which allows more time off for biological mothers than biological fathers, along with offering new mothers better benefits related to their transitions back to work. Could this be unlawful?…

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What Counts as Bad Faith Under the FMLA?

Posted on September 13, 2017 by Elaine I. Hogan

The Situation: An employee requests to use a month of FMLA leave based upon an injury and the request is approved. The employee tells HR that she has an appointment with her doctor on the day before she expects to return (which happens to be a Friday).  During that doctor’s appointment, the employee is advised to stay out of work through Monday. But the employee does not notify the employer of this development—just shows up to work on Monday.  If the employer deems the employee to have voluntarily resigned her position on Friday and thus terminates her employment that same day, is that a FMLA violation? And could it entitle the employee to liquidated damages?…

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FMLA Retaliation Claim Even Where Actual Decisionmaker Didn’t Know About Use of Leave?

Posted on May 3, 2017 by Elaine I. Hogan

The Situation: An employee requests and is approved for FMLA leave based on a mental health condition.  While she is out, she accumulates a backlog of work. According to her supervisor, after she returns, she continues to have performance problems, including not meeting certain metrics and otherwise just not meeting his standards.  Based on a recommendation from her supervisor, upper management decides to demote the employee. When performance issues continue, the owner decides to fire her, without any knowledge of her use of FMLA leave. Can this employee still make a case for retaliation under the FMLA?…

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Despite Serious Documented Performance Issues, Reference to Medical Leave May Mean FMLA Retaliation Claim

Posted on March 22, 2017 by Elaine I. Hogan

The Situation: An employee begins working as a sales consultant and from the beginning, has serious performance issues. She is given a number of warnings and even placed on an improvement plan. After she receives a final warning threatening termination if her performance does not improve, she submits a request for FMLA leave for some necessary surgery. The employer grants the request, but then terminates her soon after her return when it is clear her performance is not improving. But in the email sent up the chain recommending termination, the supervisor references the request for medical leave. Is this enough to support a retaliation claim, despite the clear (and well-documented) performance issues?…

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Can You Claim Total Disability But Also Claim to be Qualified Under the ADA?

Posted on October 19, 2016 by Elaine I. Hogan

The Situation: An employee takes extended leave because of a medical condition.  After exhausting her FMLA leave, the employee asks for additional leave as an accommodation.  Because of the nature of her position and needs of the company, you cannot provide this accommodation and she is terminated.  The next day she files her application for disability benefits, claiming that she is temporarily totally disabled.  Can she claim to be a “qualified individual” under the ADA and bring a claim based on her termination?…

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Supervisor Faces Individual Liability Under the FMLA

Posted on September 14, 2016 by Elaine I. Hogan

The Situation: After an employee at a public agency takes a number of weeks of approved FMLA leave, a supervisor begins criticizing her performance harshly (and at times, unjustifiably).  The supervisor ends up giving her a written warning for engaging in conduct that is not generally even disciplined.  When the employee later makes another mistake and is terminated, she brings a number of claims, including a claim of FMLA interference and retaliation.  Not only does she assert claims against the employer, but also against the supervisor.  Can the supervisor be held individually liable?…

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Could Drinking a Beer Constitute a Legitimate Use of FMLA Leave?

Posted on June 1, 2016 by Elaine I. Hogan

The Situation: You have an employee who has requested intermittent FMLA leave because of some mental health conditions, including depression and anxiety. One morning, the employee tells his supervisor that he needs to use some of this leave because he is experiencing severe stress and anxiety. Another employee reports to you that as the employee was clocking out, he ran into a coworker who was also leaving the jobsite and they made plans to have lunch. You send someone to the restaurant to confirm that the employee is there and he observes the employee drinking a beer. You end up firing the employee. Can he bring a claim of FMLA retaliation against you?…

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Keeping Your Story Straight—The Importance of Consistency to Avoid FMLA Interference Liability

Posted on April 27, 2016 by Elaine I. Hogan

Keeping Your Story Straight—The Importance of Consistency to Avoid FMLA Interference Liability by Elaine Inman Hogan, “The Job Description”, published by The Defense Research Institute (April 26, 2016) As employment lawyers, we are all too aware of the importance of consistency and the dangers of inconsistency when it comes to the application of employment policies.  Another area in which inconsistency can leave employers vulnerable is providing a reason(s) for employment decisions, including those related to interference claims under the FMLA.  Two different cases in recent years illustrate this point.  To read full article, click on link below - [caption id="attachment_719" align="alignleft" width="300"] The Job Description, Defense Research Institute[/caption]…

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