Articles Posted in Family Medical Leave

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Two former Walmart employees in New York have filed a class action against the company under New York’s law that entitles pregnant employees to reasonable accommodations.  Under a New York law enacted in 2016, employers must provide pregnant employees with reasonable accommodations for pregnancy-related medical conditions, such as changes to their work schedules or leave from work.

According to the advocacy group representing the women who filed the lawsuit, New York is one of 23 states with a law that have enacted laws which specifically entitle pregnant employees to reasonable accommodations for pregnancy-related medical conditions.  Maine does not have such a law and, thus, it is more legally complicated in Maine to establish that a pregnant worker is entitled to a reasonable accommodation.

The class action, filed in New York state court, alleges that Walmart violated this New York state law because it assessed attendance points to the two women when they had to miss work due to pregnancy-related medical conditions.  According to the lawsuit, Walmart has an attendance policy, similar to many employers, where it assesses points to employees who have unscheduled absences and then disciplines them when they accumulate a certain number of points.  The two women who filed the lawsuit had to miss work in order to seek medical care related to their pregnancies and Walmart held that time missed against them.  According to the women, they asked if they could be excused from work for these medical reasons but Walmart managers refused and, so, the women had to choose between their jobs and their health.

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Last week, a federal judge held that a jury could reasonably find that Hannaford fired one of the Maine Employee Rights Group’s (MERG) clients because of his age, disabilities, and need for medical leave.  MERG’s client worked for Hannaford for over thirty years and served as the Produce Manager at the Waldoboro Hannaford store when Hannaford fired him.  At the time of his termination, he was 58 years old; suffered from heart disease, knee and back impairments, and a shoulder injury; and had repeatedly needed medical leaves due to his medical conditions.  Hannaford fired MERG’s client on the day he returned from a medical leave.

Before MERG’s client went out on medical leave, the Waldoboro store was planning to undergo a major remodel and expansion which would increase both the sales volume of the store and the stress on the store’s employees.  The store manager asked MERG’s client whether he could “handle” the stress associated with the expansion but there was evidence that he did not ask other managers in the store—who were younger and not disabled—this same question.

While MERG’s client was out on medical leave, Hannaford claims it received information indicating that MERG’s client was not complying with food safety policies relating to the preparation of cut fruit.  Hannaford launched a food safety investigation and the store manager and an associate relations manager met with MERG’s client in connection with that investigation on the day he returned from medical leave.  During this meeting, the store manager claims MERG’s client admitted that he knowingly violated food safety policy and that is why Hannaford claims it fired him.  MERG’s client denies that he admitted to violating policy and says that no one even asked him if he thought he was violating food safety policy.

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This week a Federal judge in Maine denied, in large part, Hannaford’s motion to throw out a lawsuit filed by the Maine Employee Rights Group (MERG).  MERG argued that Hannaford violated disability discrimination and medical leave laws when it refused to modify our client’s schedule.  As a result, the case is slated to go to trial later this year.

MERG’s client works as an Assistant Manager in the Meat Department of the Waterville, Maine Hannaford store.  He suffers from Lyme disease and, due to this disability, he asked Hannaford for a modified schedule as a reasonable accommodation which would allow him to start and finish work earlier in the day.  He needed this early schedule because his Lyme disease symptoms (which include fatigue, dizziness, and pain) escalate in the late afternoon.  Our client had been working this early schedule for a long time, without any problems, and then Hannaford changed his schedule to make it consistent with the schedules of Assistant Meat Department Managers in other stores.  Even though our client got a note from his doctor supporting his request for the early schedule, Hannaford denied the request.  The judge held that a reasonable fact-finder could determine that Hannaford’s denial of our client’s request violated his right to reasonable accommodations and was discriminatory under state and federal disability discrimination laws.

After Hannaford denied our client’s request to go back to his old schedule, he asked for a reduced leave schedule under the FMLA.  Under the FMLA (state and federal), eligible employees are entitled to a reduction in their hours if they need such a reduction due to a serious health condition.  Our client still thought he was entitled to start and finish work earlier, as a reasonable accommodation for his disability; but because Hannaford denied that request, he and his doctor asked Hannaford to reduce his schedule so that he would consistently finish work in the mid-afternoon.  Hannaford denied this request as well.  To add insult to injury, Hannaford also retaliated against our client for requesting a modified schedule by refusing to let him punch-in early.  The judge held that a reasonable fact-finder could determine that Hannaford violated our client’s rights under the FMLA and unlawfully retaliated against him when it refused to let him punch-in early.

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Maine legislators held a hearing this week on a bipartisan bill to explore the feasibility of an employee-financed paid family medical leave system.  House Majority Leader Erin Herbig (D-Belfast) and Sen. Amy Volk (R-Scarborough) have co-sponsored the bill.  Herbig and Volk previously sponsored a bill to establish an employee-financed paid family medical leave system but they are now backing this new bill which would just study how much such a system would cost.

The original paid family medical leave bill that Herbig and Volk sponsored would have financed paid family leave with a maximum 0.5% pay deduction from employees’ pay.  It would not have required businesses with fewer than 15 employees to participate but would give them the option to participate if they wanted.

“Creating a paid family leave medical system on the shoulders of our businesses would not benefit anyone. This bill has never proposed to do that,” said Herbig. “There isn’t an easy fix but I’m tired of spinning our wheels when there are small steps we can take to creating a cost-effective, paid family medical leave system in Maine that works for both families and businesses across our state.”

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A Suffolk County jury slapped the Massachusetts Water Resources Authority (MWRA) with a $1.2 million verdict yesterday because it discriminated against an employee who needed medical leave.

The employee, a data resources manager, suffered from nerve tumors in his feet which required surgery and recovery time. The employee had a pre-planned vacation to Mexico scheduled for the period of time he was going to be recovering from his surgery. His doctor said he could go on the vacation and he told MWRA about the vacation when he requested medical leave. Even though his doctor cleared him to go to Mexico during his medical leave, MWRA fired him supposedly for going to Mexico during his medical leave.

The employee’s lawyer argued to the jury that MWRA’s claimed reason for firing the employee was illogical, false, and just a pretext to fire him because he needed medical leave. Given the verdict, the jury obviously bought the employee’s lawyer’s argument.

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Yesterday, the Maine Employee Rights Group (“MERG”) secured another victory for our client in a federal case against Woodlands Senior Living of Brewer (“Woodlands”). As we previously reported, a Bangor jury found that Woodlands unlawfully discriminated against our client because she needed medical leave for a disability. The jury awarded our client $15,000 in back pay and, yesterday, the judge awarded our client an additional $15,000 plus interest (for a total of $30,000 plus interest) because Woodlands failed to prove that it acted in good faith when it violated our client’s rights.

In addition to awarding our client another $15,000, plus interest, the judge ordered Woodlands to change our client’s personnel records so that they indicate that Woodlands unlawfully terminated her for discriminatory reasons. The judge also ordered Woodlands to submit documentation proving that it trained its managers on the law and Woodlands’ policies regarding disability discrimination and employee family medical leave entitlements.

Because MERG prevailed in this case, Woodlands will also be required to pay attorney fees to MERG for our work on this case. The court has not yet issued a ruling on the amount of attorney fees that Woodlands will have to pay MERG.

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The Mount Desert Islander published the article below about the Maine Employee Rights Group’s (MERG) lawsuit against Mt. Desert Hospital.

Lawsuit alleges discrimination

BANGOR — A former Mount Desert Island Hospital employee has filed a lawsuit in federal court claiming the hospital failed to accommodate her disability stemming from medical issues, and retaliated against her for using the Family Medical Leave Act.

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The federal Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of leave per year for certain qualifying reasons, like a serious health condition or the birth of a child. For employees who need to take all, or close to all, of the 12 weeks they are entitled to, they should know how their employers calculate their leave years. This is because every time a new leave year begins, employees get 12 more weeks of FMLA leave.

Under the FMLA, an employer can choose one of four ways to calculate its leave year:

  1. the calendar year;
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Earlier this week, the U.S. Seventh Circuit Court of Appeals upheld a jury verdict against a company that fired an employee, Tracy Wink, because she needed leave to care for her autistic son. The jury found that Wink’s termination violated the Family and Medical Leave Act (FMLA).

Wink had to take leave from work to care for her autistic son because, due to his autism, he exhibited behaviors that led to his expulsion from his daycare center. Wink’s mother was able to watch her son three days per workweek but Wink had to watch him for the other two days of the workweek. Wink’s employer, Miller Compressing Co., permitted Wink to work from home the two days per week that she had to watch her son. It permitted Wink to deduct the hours from her pay that she spent during those two days caring for her son.

After several months working under this arrangement, Miller Compressing’s management decided that it would no longer allow any employees to work from home. A human resources (HR) officer called Wink on a Friday and told her that starting the next Monday she would have to start working in the office and if she could not do that she would be fired. Wink broke down in tears telling the HR officer that she could not possibly find day care for her son with such short notice. The HR officer falsely told Wink that FMLA did not permit her to take leave to care for her son unless she was taking him to a doctor’s appointment or therapy. On Monday she came into work and said that she had not found day care for her son. The company refused to change its decision and, as a result, Wink’s employment was terminated.

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A new study from Bloomberg shows that workers filed more lawsuits under the Family and Medical Leave Act (FMLA) in 2015 than in previous years. At the same time, employers continue to try to detect “FMLA abuse,” which occurs when employees take FMLA leave they are not entitled to take. These two trends may not be unrelated.

When an employee uses FMLA leave, a business that has not properly planned for its employees to take FMLA leave can feel some strain. Good businesses should plan for employees to use FMLA leave because people inevitably get sick, get pregnant, and experience other life events that trigger the need for FMLA leave. If managers don’t have a plan for picking up the slack when employees take FMLA leave—rather than blame themselves for poor planning—they will sometimes try to find evidence that an employee actually didn’t need FMLA leave. They then can fire the employee for FMLA abuse. Overly zealous managers, who too quickly assume that employees have abused FMLA leave, can violate employees’ FMLA rights if they falsely conclude that employees have abused FMLA leave. Thus, ironically, it could be the overly zealous actions of employers trying to catch employees committing FMLA abuse that has led to a surge in FMLA lawsuits.

If your employer is accusing you of FMLA abuse, you should contact an experienced employment lawyer immediately. There are steps you should and should not take in order to protect your job and, if necessary, hold your employer accountable for violating your rights.