New York Employment Lawyer Blog

The Family and Medical Leave Act ("Act") makes it illegal for an employer to deny an eligible employee his or her right to take leave. The Act also prohibits employers from retaliating against an employee who takes time off under the Act. In a recent case, Shaffer v. American Medical Association, the federal court sent the case back to have a jury decide if an employer terminated the employee's position because he was going to take a four to six week leave of absence for a knee replacement surgery under the FMLA. Our attorneys have helped many companies train their personnel to avoid such claims.

William Shaffer worked at the American Medical Association ("AMA") as Director of Leadership Communications. Back in 2008, various positions were going to be eliminated because of budget cuts and the economy. Michael Lynch, the head of the communications department and Shaffer's boss, had already picked a position to terminate which was in Shaffer's department because that employee's duties had changed. On October 28th, Lynch had stated that he didn't think Shaffer's position needed to be cut.

However, upon learning of Shaffer's FMLA' request, Lynch changed his mind. Shaffer put in his request under the Act to take off four to six weeks for knee replacement surgery on November 20th. On November 30th, Lynch decided to terminate Shaffer's position and specifically in an e-mail to his boss, said that he apologized for his "11th hour change of heart" and stated that "The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact."

If you're an eligible employee, the Act protects you from losing your job and health insurance benefits for up to 12 weeks. The Act applies to all public agencies, state, local and federal employers, and private sector employers who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Under the Act, an employee may take up to 12 weeks of unpaid leave for any of the following reasons:

• to give birth and care for a newborn

• to care for an immediate family member, such as a spouse, child, or parent with a serious health condition

• medical leave when the employee cannot work due to a serious health condition

• for adoption or foster care placement with the employee

In order to be eligible to take leave, an employee must meet the following conditions:

• work for a covered employer;

• have worked for the employer for a total of 12 months;

• have worked for at least 1,250 hours over the past 12 months; and

• work at a location or within 75 miles of a location where the employer has at least employed 50 employees.

If you are an eligible employer under the Act, make sure your supervisors and managers are trained and familiar with the Act's policies. A simple, unintended slip of the pen can cost your company thousands in litigation. Even if Shaffer's termination was not related to his leave request, the e-mail's specific reference to the leave casted a negative shadow on whether his firing was due to his FMLA request. If you decide to fire or eliminate an employee's position days after he or she gives notice of leave for any of the reasons set forth in the Act, make sure that you document your reasoning and thought process.

Our attorneys can help you protect your business from unnecessary claims and litigation. Call our experienced FMLA Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you train you supervisory staff and deal with FLMA claims.

Resources:
Fact Sheet #28, Department of Labor

Continue reading "Employers Must Be Wary When Terminating Employees on FMLA Leave" »

Our New York Employment Law Attorneys previously wrote a Blog about employee rights and protections under the FMLA. In light of a recent ruling from the Department of Labor ("DOL"), this post is an update explaining the new implications of the ruling.

Given today's changing society and the increase in non-traditional families, the DOL recently issued an Interpretation regarding the definition of "son or daughter." This Interpretation is not a change to the existing Act but is a clarification of the Act. The new interpretation allows an eligible employee leave to care for his or her same-sex partner's son or daughter because of a serious medical condition as well as for the birth or adoption of a child, even if the employee has no legal or biological connection to that child.

Under the FMLA, eligible employees can take up to 12 weeks of job protected leave to care for the birth, adoption, or a serious health condition of a son or daughter. The FMLA defines a "son or daughter" as a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis."

The DOL's Interpretation clarifies the term "in loco parentis" which refers to a person who acts as a parent taking on the daily responsibilities and duties of caring and financially supporting a child. In loco parentis is a term generally used to refer to grandparents, uncles, aunts, brothers and sisters. The Interpretation now extends the term to an employee who acts or takes on the responsibilities of a parent but has no legal or biological relationship to the child.

The new Interpretation is a great win for children growing up in non-traditional homes who will now have an additional "parent" who can take up to 12 weeks of unpaid leave when their same-sex partner's children are born, adopted or ill. According to the U.S. Census Bureau's American Community Survey and the Bureau of Labor Statistics, 51,000 families will be affected by this Interpretation and about 102,000 children will benefit from the ruling.

If you are in a same-sex relationship and are involved in the care and support of your partner's child, you may be eligible for job protected leave in the event of your partner's child's birth, adoption, or illness. Whether you're an eligible employee is dependant on various factors and the facts of your specific case. If you are an eligible employee, the FMLA makes it illegal for your employer to discriminate or retaliate against you for exercising your rights. If you or anyone you care about has suffered from employment discrimination, please contact our experienced New York FMLA Attorneys at Villanueva & Sanchala.

Continue reading "Employee Rights: Family and Medical Leave Act ("FMLA"): Expansion of Rights to Same-Sex Partners" »

The Family & Medical Leave Act protects eligible employees for up to 12 weeks per year from losing their jobs (or comparable jobs) as well as their health insurance benefits. The Act applies to all public agencies, public and private elementary and secondary schools and companies with 50 or more employees. Under the FMLA, an employee can take up to 12 weeks* of unpaid leave each year for any of the following reason:

• To give birth and care for a newborn;

• For placement with the employee of a child for adoption or foster care;

• To care for an immediate family member (spouse, child, or parent) with a serious health condition; or

• For medical leave when the employee is unable to work because of a serious health condition.

Under the FMLA, a "serious health condition" is "an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider." The FMLA allows the employer to ask for certification that the employee has a serious health condition. Upon return to work, the employee is entitled to return to the same position or to an equivalent position.

In order to be eligible to take time off under the FMLA, an employee must

• Have worked for that employer for at least 12 months; and

• Have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and

• Work at a location where at least 50 employees are employed or within 75 miles of the location.

An employee wishing to take foreseeable time off under the FMLA should notify the employer at least 30 days in advance that he or she needs time off. If the leave is not foreseeable, the employee can provide notice "as soon as practicable" which means at least verbal notice to the employer within 1 or 2 business days of learning of the need to take time off.

Continue reading "Family and Medical Leave Act ("FMLA"): Overview of Employee Rights and Responsibilities" »