Articles Posted in FMLA

Owen H. Laird

Earlier this month marked the twenty-fourth anniversary of the passage into law of the Family and Medical Leave Act (“FMLA”). This groundbreaking piece of legislation has, over the last nearly quarter-century, been among the only federal protections for employees who need to take medical leave to care for themselves or for a family member.

In short, the FMLA allows certain employees, under certain circumstances, to take up to 12 weeks of leave in order to seek treatment for their own serious medical condition or to care for a family member. Without the FMLA, most employees would have no protection in the event of an emergency and would be forced to rely on the goodwill of their employer or—if they had one—a short-term disability policy. The FMLA was trailblazing legislation at the time of its passage and has helped millions of Americans in need from the early years of the Clinton administration through today. However, much still needs to be done to protect people in the workplace who need to take time off because of a medical issue.

Lev Craig

On August 10, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated the lower court’s dismissal of the plaintiff’s sex discrimination and FMLA interference claims in Shultz v. Congregation Shearith Israel of the City of New York. The Second Circuit found that the defendant’s notice to the plaintiff of her future termination constituted an adverse employment action, even though the notice of termination was later revoked.

Alana Shultz began working as Program Director at a New York City synagogue in 2004. In June 2015, Shultz, who was pregnant at the time, got married and notified her employer that she was pregnant. Shortly after Shultz disclosed her pregnancy, the synagogue notified Shultz that her employment would be terminated effective August 14, 2015, purportedly due to “restructuring.” Suspecting that the supposed “restructuring” was pretext for terminating her because of her pregnancy and because the synagogue’s leadership “disapproved of the fact that she was pregnant at the time of her marriage,” Shultz retained counsel, who then notified the synagogue of Shultz’s intent to pursue legal claims. Several days later, the synagogue rescinded its notice of termination, telling Shultz that it had “reinstated” the Program Director position and that she would therefore retain her position.

Lev Craig

On July 19, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated a jury verdict for the defendant in Woods v. START Treatment & Recovery Centers, Inc. In Woods, the plaintiff claimed that she had been terminated in retaliation for taking leave under the Family and Medical Leave Act (FMLA). The court held that FMLA retaliation claims should be evaluated using the “motivating factor” causation standard and found that the jury had been incorrectly instructed on the applicable law, as the Woods jury had been instructed to apply the “but-for” causation standard, not the motivating factor standard. Accordingly, the Second Circuit vacated the lower court’s verdict and remanded the case for a new trial.

In 2007, Cassandra Woods began working as a substance abuse counselor at START, a New York–based nonprofit providing treatment and counselling to individuals addicted to narcotics. Woods has several debilitating medical conditions, including severe anemia. According to Woods, she repeatedly asked to take FMLA leave due to these medical conditions during her employment at START, but was denied on multiple occasions. In April 2012, Woods was hospitalized for a week, a period which START acknowledged was protected by the FMLA. Shortly after Woods’s return to work, START terminated her employment, purportedly because of performance deficiencies.

By Edgar M. Rivera, Esq.

On May 15, 2017, the District Court for the Northern District of Illinois denied the Township High School District 214’s motion to dismiss in Valdivia v. Township High School District 214, where Noemi Valdivia, a Hispanic high school secretary, claimed that co-workers’ derogatory comments about Hispanic students and their families forced her to resign.  She brings a hostile work environment claim based on race under Title VII of the Civil Rights Act of 1964 (Title VII) and an interference claim for defendant’s failure to inform her that she was eligible for 12 weeks of leave under the Family and Medical Leave Act (FMLA).

Ms. Valdivia began working at District 214’s Elk Grove High School in 2010. Although she claims that her coworkers had always made derogatory remarks about Hispanic students and their families, in September 2014, these remarks became more frequent. For example, one of her peers allegedly said that Hispanic people “came to America” and “want everything for free even though they have new cell phones and their nails done.” Another told Ms. Valdivia not to speak Spanish at work because they were in “America.” Ms. Valdivia claims that she complained to both the school principal and the assistant principal, but both told her there was nothing they could do since “the secretaries’ union was too strong.”

Lev Craig

Currently, there is no U.S. federal statute requiring employers to provide their employees paid family or medical leave. This year, with less than two weeks until the 2016 election, both candidates have set forth plans for paid family leave for the first time in a U.S. presidential election. Paid family leave is an issue which affects millions of voters, but has received comparatively little attention in the media and, until now, hasn’t been supported by a Republican presidential candidate.

The Family and Medical Leave Act of 1993 (FMLA) is a federal statute which entitles eligible employees to take 12 weeks of unpaid, job-protected leave within a 12-month period due to the employee’s own serious health condition, to care for a family member with a serious health condition, or to care for a new child. According to the Department of Labor, the FMLA is “designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons.”

Yarelyn Mena

In David Brady v. Bath Iron Works Corporation, Bath Iron Works Corporation (“Bath Iron Works”) terminated David Brady, a long time employee, for drinking a beer with a co-worker while on FMLA leave. Mr. Brady alleged that Bath Iron Work’s termination of his employment violated the Family Medical Leave Act (“FMLA”).

In 2014, Mr. Brady began to suffer from mental health issues, including depression and anxiety, and took intermittent FMLA leave. On June 23, 2015, Mr. Brady again took intermittent FMLA to undergo treatment related to his mental health issues.

Yarelyn Mena and Edgar M. Rivera, Esq.

On April 27, 2016, the Second Circuit decided Legg et al. v. Ulster County et al., in which it reversed the Northern District of New York’s decision at summary judgment dismissing a pregnancy discrimination claim under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.  Legg arose after Ann Marie Legg, a corrections officer at the Ulster County Jail (“Ulster Jail”), requested an accommodation under Ulster Jail’s “light duty” policy.  Ulster Jail’s light duty policy allows employees suffering from medical conditions resulting from a line-of-duty injury to be reassigned to deskwork, i.e., to positions that do not include inmate contact.  Under the policy, pregnant women are not eligible for light duty; they must either continue to work “full duty,” use accrued sick or vacation time, or take leave under the Family and Medical Leave Act.

In 2008, Ms. Legg became pregnant.  Her doctor told her that her pregnancy was “high risk” and recommended that she “shouldn’t have direct contact with inmates.”  In accordance with her doctors’ recommendation, she requested that Ulster Jail allow her to work light duty and submitted a doctors’ note in support.  Although at first Ms. Legg received a denial letter in July 2008 stating that “[e]mployees are afforded light duty assignments at the Sheriff’s discretion for work-related injuries/illnesses only,” she was later informed that Ulster Jail would grant her request once she submitted a revised doctors’ note indicating that she was in fact able to work without restriction.  Ms. Legg complied and submitted the letter. For a time, Ulster Jail assigned Ms. Legg to light work; however, around August 2008, they forced her to work with inmates again.  In November 2008, Ms. Legg, now seven months pregnant, was caught in the middle of a physical fight between two inmates during which one inmate bumped into her as he ran past her.  After this incident, Ms. Legg did not return to work until after she gave birth.  Upon returning to work, Ms. Legg brought a lawsuit against Ulster Jail alleging pregnancy discrimination for denying her request for light duty.  Ulster Jail moved for summary judgment, arguing that light duty was only available for employees injured in line of duty and that all employees regardless of their gender or pregnancy status, were treated the same under that policy. The district court granted Ulster Jails’s motion and dismissed the case.

Edgar M. Rivera, Esq.

On March 17, 2016, in Graziadio v. Culinary Institute of America, the Second Circuit articulated the test for an employee-employer relationship with respect to Family and Medical Leave Act (“FMLA”) claims and clarified the standards for establishing prima facie cases in FMLA interference claims, FMLA retaliation claims, and association-disability claims under the Americans with Disabilities Act (“ADA”).

Cathleen Graziadio worked as a Payroll Administrator at the Culinary Institute of America (the “Institute”). On June 6, 2012, she took a leave under the FMLA to care for one of her sons who suffers from diabetes and took additional leave on June 27 when her other son broke his leg. The Institute took issue with the paperwork supporting her second FMLA leave and refused to allow her to return to work until she provided new documentation. Soon after, communication between Ms. Graziadio, Shaynan Garrioch—the Institure’s Director of HR—and Loreen Gardella—Ms. Graziadio’s supervisor—broke down, resulting in the Institute terminating Ms. Graziadio’s employment for abandoning her job.

Yarelyn Mena and Edgar M. Rivera, Esq.

Technology has changed how we communicate with one another: writing emails has replaced writing letters, and sending text messages, in large part, has replaced making calls. However, employees must be aware that their employers’ communication policies may not reflect these sociological changes, and failing to follow the letter of such policies can lead to warnings, termination, or, in some cases, complicate an employee’s sustainable discrimination claim. Delbert Hudson, a former employee of Tyson Fresh Meats Inc. (Tyson), learned this lesson the hard way.

Tyson’s attendance policy requires employees to “call their direct supervisor personally to report an unplanned absence or to report that they will be late.” On December 28, 2011, Hudson sent his supervisor, Hamdija Beganovic, a text message before the start of his shift, stating that he would not be at work that day and the following several days because he needed to see his doctor. Hudson was absent from work from December 28 until December 31, and received a doctor’s note on January 2 excusing him for the missed days in December and informing his employer that he would be absent from January 1 until January 7. On January 3, Hudson submitted the doctor’s note to Tyson’s Health Services Department and filled out a Leave of Absence Application pursuant to the Family Medical Leave Act (FMLA).

Yarelyn Mena and Edgar Rivera, Esq.

Imagine that you, your wife, or your partner becomes pregnant. Perhaps you will change your habits—quit smoking, quit drinking, maybe even quit seafood. But will you quit your job? That is a tougher decision. What is important to remember is that it is your decision to make, and not your employer’s. Employers often fail to recognize that a woman has the right to choose to seek time off before, during, and after a pregnancy, and to be able to return to work.

In Hemmerlein v. Bloomberg, L.P., plaintiff Megan Hemmerlein, a political on-air-correspondent for Bloomberg Television (“BT”), alleged that BT violated the Washington D.C. Family and Medical Leave Act (“DCFMLA”) by terminating her employment after she requested DCFMLA leave. After Ms. Hemmerlein informed Bloomberg Media Group’s chief executive officer, Ellen Uchimiya, that she was pregnant, BT pulled her from stories, uninvited her from important networking events, and gave her the first negative performance review she had ever received at BT. A few days into Ms. Hemmerlein’s DCFMLA leave, BT terminated her as part of “ongoing layoffs” and informed her that she could look for another position within the company. However, the other two on-air-correspondents, who were male, were not terminated and, when Ms. Hemmerlein inquired to management regarding the availability of other positions, she did not receive a response. Ms. Hemmerlein claims that her DCFMLA leave was a “motivating factor” in BT’s termination decision.