It’s a Headache: Worker With Intermittent FMLA Leave for Migraines Gets a Trial

Darrell VanDeusen
Darrell VanDeusen
08/14/2019
My blog earlier this week noted that the FMLA is 26 years old.  Yet, is it still – in some cases – difficult to apply in a balanced way.  Handling an employee’s use of unexpected intermittent FMLA leave is about the hardest issue an employer faces under this law.   And, to prove my point, let’s take a look at Dyer v. Ventra Sandusky, LLC, 2019 U.S. App. LEXIS 23678 (6th Cir.  Aug. 8, 2019). At issue here was the employer’s application...
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I am NOT a Racist! And You “Created” My Performance Problems!

Darrell VanDeusen
Darrell VanDeusen
08/12/2019
After 26 years, the Family and Medical Leave Act (FMLA) has pretty much reached the point where most cases rely on established jurisprudence.  There just is not that much new out there.   For example, if performance issues arise after an employee’s return to work they should be handled without regard to the employee’s use of FMLA leave.  An employee terminated after taking FMLA leave may claim retaliation and, when that occurs, the arguments...
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U.S. Department of Labor Issues Three New Opinion Letters

Andrea Murphy
Andrea Murphy
08/09/2019
On August 8, 2019, the federal Department of Labor (“DOL”) issued three opinion letters which concern the Family Medical Leave Act (“FMLA”) and the Fair Labor Standards Act (“FLSA”).  The details are as follows: FMLA2019-2-A Intermittent leave to attend Committee on Special Education (“CSE”)/Individualized Education Program (“IEP”) meetings to address the educational and special medical needs of an employee’s child is...
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Follow The Company Rule To Request FMLA. No, The Other One.

Darrell VanDeusen
Darrell VanDeusen
05/22/2019
Another “head-shaker” case from FMLA land. Section 825.303(a) of the DOL’s regulations on requesting FMLA leave provides that when an unforeseen need for FMLA leave arises, “an employee must provide notice to the employer as soon as practicable . . . within the time prescribed by the employer's usual and customary notice requirements applicable to such leave." 29 C.F.R. § 825.303(a) (emphasis added). But what happens when the employer has...
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Requiring Employee to Work While on FMLA: Bad idea. Duh.

Darrell VanDeusen
Darrell VanDeusen
05/20/2019
I have been updating my book on the FMLA/Wage & Hour Law (available through LexisNexis).  But enough gratuitous self-promotion.  The point is that in doing so I get to read a whole mess of recent FMLA decisions.  A few of them make me shake my head at the decision-making skills of some members of our species.  I share one of those with you, dear reader. It would seem self-evident, but employers sometimes forget that the concept of leave...
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Maryland General Assembly Approves Organ Donation Leave Legislation

Bernadette Hunton
Bernadette Hunton
04/16/2019
The Maryland General Assembly has approved legislation (HB1284/SB0705) that entitles eligible employees to unpaid job-protected leave for organ and bone marrow donation.  While expected to be approved, this legislation is not yet finalized and has not officially passed into law. Under the new legislation, Maryland employers with at least 15 employees would be required to provide eligible employees up to 60 business days in any 12-month period to...
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DOL Issues First FMLA Opinion Letter Of 2019

Randi Klein Hyatt
Randi Klein Hyatt
04/09/2019
In FMLA2019-1-A, the DOL advised that an employer cannot delay designating qualifying leave as FMLA, even if requested by the employee.  In particular, the DOL was asked if it is permissible to permit employees to exhaust first any non-FMLA leave prior to designating otherwise qualifying leave as FMLA. The DOL explained that an employer may not delay the designating qualifying leave as FMLA:  "Once an eligible employee communicates a need to take...
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Proposals Introduced For National Paid Leave Law

Clifford Geiger
Clifford Geiger
03/13/2019
Congress is exploring proposals for providing workers with paid parental leave law, which is something President Trump advocated in his most recent State of the Union address. The President’s plan, outlined in his 2020 budget proposal, calls for six weeks of paid leave for new parents to recover from childbirth and bond with a new child, including an adopted child.  States would develop their own paid leave plans within the framework of existing...
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Just Ask: Failure To Inquire Whether Mental Illness Is a Serious Health Condition Risks FMLA Liability

Bernadette Hunton
Bernadette Hunton
03/01/2019
Properly handling of mental illness under employment laws remains a challenge for employers.  One of the most common misconceptions is that such conditions don’t trigger protected leave.  A recent Fourth Circuit case however reminds us that notice to invoke Family and Medical Leave Act (FMLA) benefits does not require “any magic words,” and when it doubt, it’s always best to inquire more.  Hannah P. v. Coats, No. 17-1943 (4th Cir....
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DOL’s Six Latest Opinion Letters Offer Useful Guidance To Employers

Kollman & Saucier
Kollman & Saucier
08/30/2018
After going into hibernation during the Obama Administration, opinion letters have reemerged as part of the DOL’s Wage and Hour Division’s (WHD) efforts to guide employers seeking valuable input about legal compliance and best practices.  As the DOL itself explains, these letters are “official, written opinion[s] by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter.” The...
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