The COVID Cases are Coming, the COVID Cases are Coming!

Darrell VanDeusen
Darrell VanDeusen
08/23/2021
And so it has begun.  Unless you just arrived from another planet, you know that we’ve been in COVID world for about 18 months.  The lawsuits involving employee behavior, and employer reactions to that behavior, during the pandemic are being filed and decided in state and federal courts.  Here’s one where a physician assistant’s (PA) unprofessional behavior in the early months of COVID led to his termination.  Unwilling or unable to accept...
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Is a Broken Little Toe a FMLA Serious Health Condition? Ask the Jury.

Darrell VanDeusen
Darrell VanDeusen
05/07/2021
An employer that fired a worker who broke his little toe and then did not come to work because, he claimed, he couldn’t get his work boots on will have to let a jury decide whether he had a serious health condition under the FMLA and whether, as a result, his termination was illegal interference with his FMLA rights.  Scholl v. Miami Valley Polishing, LLC, 2021 U.S. Dist. LEXIS 82946 (S.D. Ohio 2021). The company, MVP, supplies polished aluminum...
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It’s Called the Bermuda Triangle of Leave for a Reason: It’s Got Three Parts.

Darrell VanDeusen
Darrell VanDeusen
05/04/2021
I am in the process of updating my FMLA/Wage & Hour treatise published by LEXIS/NEXIS (gratuitous self-promotion).  All this means is that I have been reading lots of FMLA cases; my blogs this week will be a teaser for what’s new in the book.  As you likely know, the challenges in applying the FMLA, ADA and workers’ compensation law when an employee needs time off from work are, at times, mind-boggling.  The interplay of these statutes in...
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Court Rules That DOL Definition of "Workweek" Under the FMLA is Incorrect

Clifford Geiger
Clifford Geiger
01/21/2021
The United States Court of Appeals for the Ninth Circuit has ruled that the Department of Labor incorrectly defined “workweek” for purposes of time off under the Family and Medical Leave Act (FMLA).  You can read the details, as well as the dissenting opinion, at Scalia v. State of Alaska, 9th Cir., No. 19-35824, 1/15/21 The FMLA grants eligible employees a “total of 12 workweeks of leave during any 12-month period” to attend to qualifying...
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DOL Authorizes Use of Telemedicine For FMLA Certifications

Eric Paltell
Eric Paltell
01/04/2021
Among the many changes COVID-19 has brought about  is the increases use of telemedicine for persons in need of medical services. On December 29, 2020, the United States Department of Labor embraced the use of telemedicine as a method by which an employee can obtain “treatment” for  “serious medical condition” under the Family and Medical Leave Act (“FMLA”). The FMLA permits an employee to take up to 12 weeks of leave for their own or a...
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No Magic Words Necessary to Request FMLA Leave

Clifford Geiger
Clifford Geiger
10/05/2020
There are no magic words an employee needs to utter to trigger rights under the Family and Medical Leave Act (“FMLA”).  The Ninth Circuit’s recent decision in Rouse v. Wynn Las Vegas, LLC, No. 18-17452 (9th Cir. 2020) illustrates the point.  In that case, Rouse sent his employer an email saying he wanted to take three days of paid vacation to have surgery.  Even though Rouse did not mention the FMLA, the court found that the email, as well...
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New FMLA Regs on Tap? Oh, and NEW Forms Are Here

Darrell VanDeusen
Darrell VanDeusen
07/21/2020
The U.S. Department of Labor published a request for information on July 16, 2020, seeking comments on possible revisions to the DOL’s FMLA regulations.   If you are an employer interested in submitting comments to the DOL, we can help you do that.  Just let us know.  Submissions are due on or before September 15, 2020. The notice states that “the Department seeks input from employers and employees on the current FMLA...
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Who is a Healthcare Provider for FMLA Eligibility?

Darrell VanDeusen
Darrell VanDeusen
05/27/2020
No question, we are in a time of high anxiety.  Friends, family and pretty much everyone else I talk to has a story about how they are dealing with the new normal in the time of COVID-19.  We all need someone to talk through stuff with.  I suspect that many Employee Assistance Plans will see an uptick in use over course of 2020. But does the person you talk to qualify as a health care provider under the FMLA?  A recent case from...
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How EFMLA, EPSL, and Existing Leave Work Together

Garrett Wozniak
Garrett Wozniak
04/21/2020
In its most recent questions and answers, the Department of Labor addresses the circumstances in which employers may require employees to use existing leave and how existing leave works in conjunction with EFMLA and EPSL under the Families First Coronavirus Response Act.  This information is found in FAQ 86, with reference to previous guidance at Questions 31-33. Let’s take EFMLA first.  EFMLA is available when an employee is unable to...
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Determining Leave Hours Under the FFCRA . . . And Some Other Guidance

Garrett Wozniak
Garrett Wozniak
04/20/2020
It has been about two weeks since the DOL issued guidance on the paid leave (EFMLA and EPSL) required by the Families First Coronavirus Response Act (FFCRA).  Here is a summary of the DOL’s latest guidance -- questions 80-88 on the Department’s FAQ page.  These questions and answers primarily concern employees with irregular schedules and how to determine the number of leave hours and rate of pay for leave purposes.  The Q&A...
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