Category Archives: Family and Medical Leave Act (FMLA)

Drew Capuder Will Be Speaking at Sterling Employment Law Seminar

On March 29, 2017, I will be speak­ing and pre­sent­ing an arti­cle on “The Per­ilous Inter­sec­tion of FMLA and ADA,” at a sem­i­nar host­ed by Ster­ling Edu­ca­tion Ser­vices. The Sem­i­nar, “Employ­ment Law: Rights, Ben­e­fits, and Emerg­ing Issues,” will take place in Mor­gan­town, West Vir­ginia. If you would like to attend the sem­i­nar click here for more infor­ma­tion and a reg­is­tra­tion form.

Here is the agen­da for my speech and arti­cle:

  1. FMLA updates
  2. ADA updates and EEOC guide­lines
    1. Expan­sion of what can be con­sid­ered a “dis­abil­i­ty”
    2. What con­sti­tutes “rea­son­able accom­mo­da­tion” accord­ing to the EEOC
    3. Dis­crim­i­na­tion and vio­la­tions
    4. Review and update writ­ten poli­cies and job descrip­tions
  3. Over­lap of FMLA and ADA: find­ing the right bal­ance

Legislative Update: Pending bill would expand sick leave rights for West Virginia employees

House Bill 2770, which was recent­ly intro­duced into the West Vir­ginia House of Del­e­gates, would cre­ate the “Flex­i­ble Leave Act” to allow employ­ees to take already earned paid leave, and to use that leave for paid time off for an ill­ness of the employ­ee or the employee’s “imme­di­ate fam­i­ly”. The bill does not give employ­ees any addi­tion­al paid leave—it only allows them to take their paid leave that they have already earned under their employ­ers’ poli­cies, and allows the flex­i­bil­i­ty (hence the name, “Flex­i­ble Leave Act”) to take leave that may have been intend­ed for anoth­er pur­pose, such as earned vaca­tion time, and apply it for the dif­fer­ent pur­pose of their own or an imme­di­ate fam­i­ly member’s ill­ness.

On Jan­u­ary 24, 2011, Del­e­gates Caputo, Fra­gale, Hat­field, Mar­tin, and Moye intro­duced House Bill 2770, which is being referred to the Com­mit­tee on Ener­gy, Indus­try and Labor, Eco­nom­ic Devel­op­ment and Small Busi­ness then Finance. You can keep track of the progress of the bill by going to the Bill Sta­tus page and enter­ing 2770 in the “Enter Bill Num­ber” field. For infor­ma­tion on the bill’s spon­sors, or on any oth­er mem­bers of the Sen­ate, you can go to the House Mem­bers page and pick the mem­ber from a drop-down list. For those of you who are inter­est­ed in find­ing out more about the leg­isla­tive process, the Leg­is­la­ture has a “How a Bill Becomes Law” page.  The Leg­is­la­ture also has a very nice pho­to gallery of the Capi­tol Build­ing.

Con­tin­ue read­ing Leg­isla­tive Update: Pend­ing bill would expand sick leave rights for West Vir­ginia employ­ees

Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer

Retal­i­a­tion law is one of the most devel­op­ing (and dan­ger­ous) areas of employ­ment law. I recent­ly spoke at the West Vir­ginia Employ­ment Lawyers Association’s annu­al con­fer­ence on retal­i­a­tion law, and I want­ed to go back and dis­cuss an impor­tant Fourth Cir­cuit deci­sion on the Fam­i­ly and Med­ical Leave Act of 1993, 29 U.S.C. § 2601 et seq.

Dot­son v. Pfiz­er: Adop­tion and the FMLA

The deci­sion is Dot­son v. Pfiz­er Inc., 558 F.3d 284 (2009), and involved alle­ga­tions of retal­i­a­tion stem­ming from leave tak­en for an inter­na­tion­al adop­tion from Rus­sia.

The jury award­ed $1,876 in dam­ages on the FMLA inter­fer­ence claim and $331,429.25 on FMLA retal­i­a­tion claim. The judge then award­ed $333,305.25 in statu­to­ry liq­ui­dat­ed dam­ages, $375,000 in attor­neys’ fees, and $14,264.88 in court costs. Both sides appealed. The Fourth Cir­cuit reject­ed all aspects of the employer’s appeal, but found the tri­al court made a mis­take in refus­ing to award the plain­tiff pre-judg­ment inter­est. Con­tin­ue read­ing Back from the USSR: FMLA Retal­i­a­tion, 4th Cir­cuit Deci­sion in Dot­son v Pfiz­er

FMLA now applies to leave for care of children by same-sex couples

The Unit­ed States Depart­ment of Labor recent­ly issued an Administrator’s Inter­pre­ta­tion 2010–3 which applies leave rights under the Fam­i­ly and Med­ical Leave Act to care of chil­dren by same-sex cou­ples. The US Depart­ment of Labor issued a press release to help explain the Administrator’s Inter­pre­ta­tion. In oth­er words, employ­ees in same-sex rela­tion­ships who qual­i­fy for leave under the FMLA will be enti­tled to pro­tect­ed leave for the qual­i­fy­ing care of their chil­dren.

As the DOL’s press release suc­cinct­ly says, the “FMLA allows work­ers to take up to 12 weeks of unpaid leave dur­ing any 12-month peri­od to care for loved ones or them­selves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daugh­ter”?

The key issue was when the child fell into the def­i­n­i­tion of “son or daugh­ter” for the employ­ee seek­ing leave. When does the law rec­og­nize the child as the “son or daugh­ter” of the employ­ee?

Administrator’s Inter­pre­ta­tion 2010–3 sets out the statu­to­ry lan­guage, and same-sex cou­ples now have the nec­es­sary rela­tion­ship to the child through the sta­tus of being “in loco par­en­tis”, which more or less means some­one who “stands in the place” of the par­ent. Here is the dis­cus­sion in the Administrator’s Inter­pre­ta­tion:

The FMLA enti­tles an eli­gi­ble employ­ee to take up to 12 work­weeks of job-pro­tect­ed leave, in rel­e­vant part, “[b]ecause of the birth of a son or daugh­ter of the employ­ee and in order to care for such son or daugh­ter,” “[b]ecause of the place­ment of a son or daugh­ter with the employ­ee for adop­tion or fos­ter care,” and to care for a son or daugh­ter with a seri­ous health con­di­tion. See 29 U.S.C. § 2612(a)(1)(A) — ©; 29 C.F.R. § 825.200. The FMLA defines a “son or daugh­ter” as a “bio­log­i­cal, adopt­ed, or fos­ter child, a stepchild, a legal ward, or a child of a per­son stand­ing in loco par­en­tis, who is— (A) under 18 years of age; or (B) 18 years of age or old­er and inca­pable of self-care because of a men­tal or phys­i­cal dis­abil­i­ty.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122©, 825.800.

(empha­sis added).

Con­tin­ue read­ing FMLA now applies to leave for care of chil­dren by same-sex cou­ples

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

I will be speak­ing (and pre­sent­ing arti­cles)  at a sem­i­nar spon­sored by Ster­ling Edu­ca­tion Ser­vices on Octo­ber 20, 2010 in Mor­gan­town, West Vir­ginia, enti­tled “Fun­da­men­tals of Employ­ment Law”.

I will be speak­ing (and pre­sent­ing arti­cles) on “Sex­u­al, Racial, and Oth­er Harass­ment in the Work­place” and “ADA and FMLA Update”.

Here is the full agen­da, and here is the fac­ul­ty infor­ma­tion. The sem­i­nar will pro­vide around 6–8 hours of con­tin­u­ing edu­ca­tion cred­it for lawyers (I don’t know the exact num­ber, but the sem­i­nar is a full day).

You can reg­is­ter for the the sem­i­nar online. For fur­ther infor­ma­tion, you can con­tact Ster­ling, and their num­ber is 715–855-0498.