Articles Posted in Family Medical Leave

Published on:

The U.S. Department of Labor recently highlighted the distressing problem of workplace injuries in the health care industry.  Health care workers, such as nurses and nurse aides, suffer work-related injuries and illnesses at a rate almost twice as high as the rate of workers in private industry.  They suffer injuries from, among other things, moving patients, needle sticks, and exposure to hazardous chemicals and drugs.

This is a serious problem.  “It means that workers who are relatively young have to stop working early in many cases,” says David Michaels, chief of the federal Occupational Safety and Health Administration (OSHA). “They go home and they have real disabilities. They have trouble lifting up their kids. They have trouble doing a lot of the daily tasks of life, because of back injuries, arm injuries, shoulder injuries. It’s a very big deal.”

Many of the injuries that health care workers suffer are preventable.  In some hospital systems, safe patient handling programs have dramatically reduced workplace injuries.  In Veterans Administration hospitals injuries from lifting patients dropped by an average of 40% and in a chain of hospitals they dropped by 80% after implementing safe patient handling programs.  These programs include training staff on proper techniques and utilizing better equipment to lift patients.

Published on:

Last month, the U.S. Eighth Circuit Court of Appeals, in Missouri, held that a reasonable jury could determine that Tyson Fresh Meats violated the Family and Medical Leave Act (FMLA) when it fired Delbert Hudson.  The Eighth Circuit reversed the trial court’s decision to dismiss the case. 
In December 2011 and January 2012, Mr. Hudson had to take some time off from work at Tyson because of depression and back pain.  Mr. Hudson’s co-worker/girlfriend initially notified his supervisor that he needed to miss work for medical reasons and Mr. Hudson also sent a text message to his supervisor.  In the midst of his medical leave, Mr. Hudson brought Tyson a note from his doctor and filled out a medical leave form.  When Mr. Hudson returned to work, after about two weeks of medical leave, Tyson fired him.
The FMLA requires an employer to restore an employee to his job or an equivalent job when he returns from FMLA-qualifying leave.  In this case, the Eighth Circuit determined that Mr. Hudson qualified for FMLA leave and that a reasonable jury could find that Tyson violated the FMLA because it did not permit him to return to work when his FMLA leave ended. 
Published on:

Earlier this month, bills were reintroduced in the U.S. House and the Senate that would amend the Family and Medical Leave Act (FMLA) so that it would protect employees who take time off from work due to the death of a child. The bill is called the Parental Bereavement Leave Act/Sarah Grace-Farley-Kluger Act.

The FMLA currently provides job-protected leave to eligible employees upon the birth or adoption of a child but not the death of a child. Maine’s family medical leave law similarly does not provide for job-protected leave due to the death of a child unless that death occurs in the course of military duty.

The Parental Bereavement Leave Act has been introduced in Congress before but this is the first time that it has garnered bipartisan support in the House with sponsors Steve Israel (D-NY) and Paul Gosar (R-AZ).

Published on:

The legislatures in Connecticut and Vermont are considering bills that would further expand the availability of paid sick leave for workers. As we’ve reported before, paid sick leave laws are beginning to pop up in various parts of the country. However, Maine, unlike some of its neighboring New England states, does not require employers to provide paid sick leave.

In Connecticut, service workers who work for employers with 50 or more employees already have the right to paid sick leave. They can use this paid sick leave to attend to their own medical needs and to the medical needs of a spouse or child. The Connecticut legislature is debating a bill that would expand this law to employers with fewer than 50 employees. The bill would also require employees to pay for their paid leave by contributing %0.25 of their weekly salaries to a fund that they would access when they needed to take sick leave. As we previously reported, this payment mechanism is similar to the mechanism that Rhode Island uses.

In Vermont, the legislature is debating a bill that would require all employers to provide at least three paid sick days per year and five days after the employee had worked for the employer for two years. Even this relatively modest proposal has drawn criticism from the business community who say that this sick leave law would overly burden small businesses. Supporters of the bill have emphasized the benefits to public health. “Do you want a sick food-service worker serving you food?” Rep. George Till asked his colleagues. “Do you want a sick child-care worker taking care of your child? I don’t. It turns out those are two of the areas where the vast majority of workers do not have paid leave. It also turns out those are two areas where infectious diseases are commonly transmitted.”

Published on:

The United States is one of the few countries in the world that does not require employers to provide paid maternity leave to employees.  A U.N. study of 185 countries found that the United States, Papua New Guinea, and Oman are the only countries that do not provide paid maternity leave.  The United States offers unpaid maternity leave in some circumstances but, even if mothers qualify for it, many families cannot afford to go long without the mother’s income.  So, after having a baby, many American families stress and worry about money during a mother’s maternity leave; many mothers must return to work before they or their newborn babies are ready; and many mothers must leave the workforce because they aren’t entitled to maternity leave at all.

Although there is no federal law in the United States that requires employers to offer paid maternity leave, California, New Jersey, and Rhode Island have laws that require employers to offer mothers some pay during their maternity leaves.  Even so, according to data from the U.S. Bureau of Labor Statistics, only about 12 percent of U.S. workers have access to paid maternity leave.

Even though they are not legally required to, some employers have instituted paid maternity leave policies. These employers include Google and now Vodafone.

Published on:

Last week, a federal court in Massachusetts held that a reasonable jury could find that the Salter School discriminated against former employee Victoria Domenichetti because she was pregnant and would need maternity leave. Ms. Domenichetti worked as the Externship Coordinator at the Salter School’s Fall River campus, which is a career training school. The Salter School reduced Ms. Domenichetti’s hours from full-time to part-time shortly after she submitted paperwork requesting maternity leave.

The Salter School argued that a member of upper management, William Anjos, made the decision to reduce Ms. Domenichetti’s hours and he had no idea that Ms. Domenichetti was pregnant and would need maternity leave. As such, according to the Salter School, a jury could not reasonably find that it discriminated against Ms. Domenichetti because of her pregnancy and need for maternity leave because Mr. Anjos had no idea she was pregnant when he decided to reduce her hours. The court rejected this argument. Even assuming that Mr. Anjos didn’t know that Ms. Domenichetti was pregnant, the court held that a jury could reasonably find that the Salter School discriminated against Ms. Domenichetti because Mr. Anjos based his decision on input from someone who did know that Ms. Domenichetti was pregnant and would need maternity leave. Mr. Anjos relied on the input of the Fall River campus President, David Palmer, when he made his decision to reduce Ms. Domenichetti’s hours; there was no dispute that Mr. Palmer knew that Ms. Domenichetti was pregnant and would need maternity leave when he offered his input.

The argument that the Salter School made in this case is not uncommon. In the face of discrimination charges, many employers choose to put forward a person who did not know the complainant well and then claim that he made the decision to take adverse action (such as, termination, demotion, or suspension) against the complainant. The employer will argue that this supposed decisionmaker did not know that the complainant was pregnant, or disabled, or in need of medical leave, or had some other protected trait, and, thus, he could not have discriminated against the complainant because of her protected trait. The problem with this strategy, however, is that managers who do not know an employee rarely take adverse actions against the employee without getting input from a manager who knows the employee and that the employee is pregnant, disabled, in need of medical leave, etc. These managers who provide this input are often the ones behind the discriminatory treatment.

Published on:

Last month, the U.S. Sixth Circuit Court of Appeals held that a reasonable jury could determine that the defendant-employer violated the Family and Medical Leave Act (FMLA) when it fired the plaintiff-employee after she returned from medical leave related to a knee replacement surgery.  The FMLA, among other things, requires employers to permit eligible employees to take medical leave, sometimes called “FMLA leave,” when they need it for serious health conditions; and the law prohibits employers from retaliating against employees who take FMLA leave.

The plaintiff-employee in this case, Jeanne Lee Wallner, claimed that the defendant-employer, a financial brokerage firm called Hilliard Lyons Asset Management, fired her because she had taken FMLA leave.  Hilliard Lyons fired Wallner, a 27 year employee of the firm, a mere nine days after she returned from FMLA leave.

The Sixth Circuit was called upon to rule in this case because a trial judge denied Wallner the opportunity to present her case to a jury.  The trial judge thought that no reasonable jury could find in Wallner’s favor and, for that reason, dismissed her case.  The Sixth Circuit disagreed with the trial judge.  The Sixth Circuit concluded that Wallner presented circumstantial evidence that her FMLA leave served as one of multiple reasons for her termination and, as such, a reasonable jury could find in her favor.

Published on:

Last week, the U.S. Seventh Circuit Court of Appeals, in Chicago, affirmed a trial court’s holding that two United Airlines contractors, Trans States Airlines and GoJet Airlines, jointly employed former employee Darren Cuff under the Family and Medical Leave Act (FMLA).

The FMLA requires covered employers to provide medical leave to eligible employees.  The FMLA does not cover employers who have fewer than 50 employees.  Trans States and GoJet argued that Cuff only worked for Trans States and, as such, he was not entitled to FMLA leave because Trans States had less than 50 employees.  However, according to regulations issued by the U.S. Department of Labor, when two employers jointly employ an employee, the total number of employees who work for both employers must be counted to determine FMLA coverage.

The court held that Trans States and GoJet jointly employed Cuff and, thus, Cuff was entitled to FMLA leave because Trans States and GoJet, together, employed over 350 employees.  Cuff was the Regional Manager for both Trans States and GoJet.  He represented both companies in dealings with United Airlines as well as O’Hare Airport, in Chicago.  His business card contained the logos of both Trans States and GoJet.  Cuff’s supervisor notified United and other airlines in 2008 that, “[e]ffective immediately, Darren Cuff, Regional Manager, Trans States Holdings, Inc. [sic: his official employer was Trans States Airlines] will be your go to person if there are any operational issues or concerns with Trans States or GoJet Airlines flights operating in and out of your cities.”

Published on:

In most places in the United States, including Maine, employers do not have to provide paid leave to employees who need to take time off from work because they are sick, to care for a sick family member with, or to care for a newborn child.  The federal Family and Medical Leave Act (FMLA) and most state laws only require employers to provide unpaid leave.  But there is a growing trend in some states and cities to provide employees with paid sick and family leave. 

California, New Jersey, and Rhode Island already have state-run insurance programs, funded through employee payroll deductions, which provide insurance payments to employees who need to take family leave from work, such as leave to care for a sick family member.  New York State lawmakers are currently debating a bill that would create a similar insurance program.  An advantage to these programs is that employers do not have to pay for the entire cost of the paid family leave since employees contribute to the insurance program.    

Connecticut has a law that requires employers to provide certain employees with paid sick leave.  Some large cities, such as New York City, San Francisco, and Washington, DC, have similar paid sick leave laws. While these laws have faced stiff criticism from some segments of the business community, the laws so far have not significantly impacted profits.  According to Bloomberg Business Week, “preliminary research shows the laws have little, if any, downside for profits.  And many small businesses say they don’t find complying with the laws a burden.  Many already gave employees paid sick time before the laws were passed.  And having paid sick time makes employees happy.”

Published on:

In a case that the Maine Employee Rights Group (MERG) filed against F.W. Webb Co., the U.S. District Court of Maine has found that a jury could reasonably conclude that in 2009 F.W. Webb unlawfully fired Mr. Crosby, a former truck driver based out of its South Portland location, because of his disabilities and need for medical leave.  In 2009, Mr. Crosby needed two medical leaves of absence from work because he had to undergo treatment for the disabilities of alcoholism and depression, which were exacerbated by a divorce that he was going through.  F.W. Webb fired Mr. Crosby one week after he returned from his second medical leave of absence.

F.W. Webb unsuccessfully attempted to persuade the court that Mr. Crosby did not have a disability under the Americans with Disabilities Act (ADA) and Maine Human Rights Act (MHRA).  Relying on the medical evidence that MERG provided, the court rejected F.W. Webb’s arguments.  Indeed, the fact that Mr. Crosby suffered from alcoholism, alone, established that he had a disability under the MHRA.

F.W. Webb also unsuccessfully argued that it fired Mr. Crosby because Mr. Crosby—an employee with no prior disciplinary history at F.W. Webb—unknowingly drove for two days without a valid license.  The court rejected F.W. Webb’s argument because MERG showed that this supposed reason was likely just a cover-up, or “pretext,” for its unlawful motivation.  MERG showed that F.W. Webb treated Mr. Crosby differently than other truck drivers who did not have disabilities or a need for medical leave.  For instance, F.W. Webb usually warned truck drivers that their licenses were about to expire but it did not do that for Mr. Crosby.  Instead, F.W. Webb notified Mr. Crosby that his license had expired after-the-fact.  Also, other F.W. Webb truck drivers committed infractions just as bad, or worse, than Mr. Crosby and F.W. Webb did not even discipline, let alone fire, them.  For instance, one F.W. Webb driver illegally drove a F.W. Webb truck with an expired Department of Transportation (DOT) card.  Even though a law enforcement officer cited him for driving with this expired DOT card, F.W. Webb did not discipline him.  Another F.W. Webb driver drove a truck after he had been convicted of driving under the influence (DUI) but F.W. Webb did not discipline him for this infraction.

Contact Information