Category: FMLA

FMLA, Retaliation, and Lawsuits

Ronald Rice was excited to share the news of his wife’s pregnancy with his co-workers and employer in January 2012. Within days of his announcement, however, his work relationship turned sour.

Suddenly, Rice was assigned a multitude of extra duties that were outside his job description. He endured the extra workload for six months until his wife’s pregnancy took a difficult turn. In order to take care of his wife who now had more doctor’s appointments to attend and had severe morning sickness, Rice requested to take five days of vacation time. Two of those days were denied, so Rice put in an FMLA request for those days, three days after his vacation request. The employer swiftly terminated Rice.

Rice then sued the company for interfering with his FMLA rights. The district court decided that there was enough evidence to conclude that the employer had terminated Rice due to his association with his pregnant wife and discriminated against him for trying to take an FMLA leave. The employer’s defense hinged on the testimony of managers who claimed the executor of the termination was not aware of Rice’s request. The court, however, found that there was no plan to terminate Rice previous to his FMLA request, and therefore concluded that the sole reason for termination was borne out of retaliation.

Source: Rice v. Kellermeyer Co. (Ohio 2014)

Pregnancy And Leave

Vodafone, a British telecommunications company that operates all over the world, recently announced a new, very generous maternity leave policy.  Vodafone employees will be able to take off 16 weeks of maternity leave while still receiving their full regular pay, and then for the next six months will be able to work slightly reduced hours, still at their full regular pay.

Vodafone’s policy is unusual, because it will apply to employees in every country, even if local laws don’t require maternity leave that generous.

So, if you don’t work for Vodafone, what are your maternity leave rights in the U.S.?

Pregnancy- and maternity- leave rights can come from four different laws, which all cover slightly different circumstances.

FMLA­ – The federal Family and Medical Leave Act provides employees up to twelve weeks of unpaid leave either for a pregnancy-related serious health condition or for baby-bonding or medical needs after birth.  The twelve week limit is per year.

CFRA – The California Family Rights Act also provides twelve weeks of unpaid leave, but only from birth on, for baby bonding or medical needs after the birth.  The CFRA specifically excludes pregnancy-related conditions.

Which is okay, because that period of time in California is covered by the PDLL, or Pregnancy Disability Leave Law.  The PDLL gives an employee up to four months of leave for any disabling pregnancy or birth-related condition, including things like being put on bed rest while pregnant.  Although PDLL leave is also unpaid, it does offer the benefit of requiring an employer to continuing paying for an employee’s health insurance during the leave.  Under other laws, employees usually has to pay the whole insurance bill by themselves.

Lastly, The California Fair Employment and Housing Act, or FEHA, (and the similar federal Americans with Disabilities Act) may require an employer to give an employee even more leave if that employee is disabled and additional leave might be a reasonable way to accommodate that disability.

So how does this all work together?  Here is one imaginary scenario:

In January, a pregnant woman due in May is put on bed rest by her doctor.  Because she is medically disabled, she is therefore eligible for PDLL and FMLA leave.  Three months later, in April, the employee has used up all of her FMLA leave, but since PDLL offers an extra month, she is still getting health insurance and her job is still protected.

The employee has her baby in May, but there are complications.  CFRA baby bonding leave starts immediately when her baby is born, and the employee’s job is protected for twelve more weeks.  Unfortunately, by three months after the birth, the mother is still having trouble with complications and still cannot work.  She has now used up her FMLA, PDLL, and CFRA leave.  The last step is for the mother and the company to talk and determine whether a little extra leave may be a reasonable accommodation for her disability.  The mother only needs a couple more weeks, so the company agrees the additional time is reasonable, and the employee, almost eight months after she was forced to stop working and go on bed rest, is finally able to return to work.

In this scenario, the company did everything right.  Unfortunately, however, there are still companies that discriminate against pregnant employees and employees with medical issues or disabilities and don’t comply with all of the laws protecting those employees and their leave rights.

California is Ahead of the Curve; President Obama Wants to Put the Nation on Track

President Obama Delivers State Of The Union AddressPresident Obama has laid out proposals for two new employment actions that will bring the nation to the employee protected level California is already in. In fact, the country, if Obama’s initiatives come to fruition, will be more ambitious than California’s measures. First, companies that employ 15 or more people will be required to provide their fulltime workers seven days of sick time per year. Additionally, Obama wishes that states will create more leave opportunities for employees who wish to take time off to be with newborn children and/or tend ailing family members.

For sick leave, California’s newly passed measures allows for 1 hour to be accrued for every 30 hours worked, up to 24 hours. Paid Family Leave through the State Disability Insurance Program allows up to $1,100 for a maximum of 6 weeks.

Obama has charged Congress to create leave programs for those employed with the federal government. In the near future, Obama will propose a $2.2 billion fund request for five states that have not been specified yet. It will be used to administer and pay for family leave programs.  Additionally, the President called upon the Department of Labor to fund $1 million worth of grants to conduct studies on the logistics of family leave programs in various states.

Source: LA Times

Image Source: E Online

Rand Paul Doesn’t Believe You’re Disabled, But California Does

One big debate in recent news was stirred by politician Rand Paul’s comments about employees on disability.  Sen. Paul suggested more than half of disabled employees were “malingers” – liars who fake illness just to get out of having to work.  Sen. Paul went on to belittle the majority of disabled employees, saying they are just “anxious or their back hurts” and they are not “truly disabled.”

While being a paraplegic is apparently enough for Sen. Paul to consider you “horrifically disabled” and therefore entitled to help – despite the number of persons which similar conditions who are nonetheless hardworking, employed individuals – Sen. Paul suggested that employees suffering from mental disorders and disabilities were simply “gaming the system.”

Fortunately, California law takes a very different view, recognizing that there are a number of disabilities that can make it difficult to work or engage in other major life activities.  While Sen. Paul treats the 14% of disabled employees with mood disorders as freeloaders, California law specifically recognizes the disabling effect of these disorders and protects employees “[h]aving any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.”  In fact, two examples, clinical depression and bipolar disorder, are even mentioned in the text of the law.

As an employee in California, you are entitled to certain rights and protections if you are disabled, including reasonable accommodations for any work restrictions and protection from discrimination or being fired because of your disability, including mental illnesses.  Unfortunately, some companies act more like Sen. Rand Paul than law-abiding California corporations and fail to help and protect their disabled employees.  If you have been the victim of disability discrimination or mistreatment by your employer because of a disability, we may be able to help.

Teen Delivery Driver Terminated for Having Cancer

Jonathan Larson, 19, was diagnosed with brain and spine cancer. He had undergone several rounds of radiation but needed to go back for more surgery. Larson worked as a delivery driver for Rosebud Restaurant in Naperville, a suburb of Chicago. He asked his boss at the restaurant if he could have six weeks off for the surgery;  he should be back no later than that.

In response to his request for this life changing surgery, Larson’s manager responded, “No, by that time I’ll already have another driver hired. Just leave, I have to make some phone calls.

Larson had been terminated because his cancer diagnosis required surgery. He commented that he felt “disrespected and demeaned” because he had cancer. Rosebud declined to comment citing employee confidentiality.

In California, employers are mandated to engage in an interactive process to determine if there is any accommodation that will aid in the employees’ continued or future success with the company. A leave of absence, especially one that was estimated for only six weeks, may have qualified for a reasonable accommodation.

Does Jonathan Larson’s story sound familiar? Have you experienced anything like it? Contact an Aegis attorney.

Source: NBC Chicago