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:
- FMLA updates
- ADA updates and EEOC guidelines
- Expansion of what can be considered a “disability”
- What constitutes “reasonable accommodation” according to the EEOC
- Discrimination and violations
- Review and update written policies and job descriptions
- Overlap of FMLA and ADA: finding the right balance
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
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
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.
Continue reading FMLA now applies to leave for care of children by same-sex couples
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.