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Family, Medical & Personal Leave

     Monthly Law Journal Articles: The Family and Medical Leave Act and Public Safety Personnel (Part One), 2015 (11) AELE Mo. L. J. 201.
     Monthly Law Journal Articles: The Family and Medical Leave Act and Public Safety Personnel (Part Two), 2015 (12) AELE Mo. L. J. 201.

     While a city manager was off work recovering from surgery, the city council voted to fire her for causing strife in the community. She had previously declined to fill out the city’s Family and Medical Leave Act (FMLA) paperwork to request leave. She sued claiming a FMLA violation. Upholding summary judgment for the defendants, the federal appeals noted that there was no evidence that she was fired in a way that interfered with her FMLA rights, even though she was then out because of the surgery. It seemed apparent the dismissal would have occurred regardless and she had even stated that she would not seek medical leave. The defendants stated a non-discriminatory reason for firing her. Mullendore v. City of Belding, #16-2198, 2017 U.S. App. Lexis 16310, 2017 Fed. App. 491N (6th Cir.).

      An administrative assistant in the Illinois courts was suspended on the day she returned to work from a leave taken under the Family and Medical Leave Act, 29 U.S.C. 2601. She chose not to attend a disciplinary meeting and was then fired. Her judge supervisor sent a letter citing several instances of alleged misconduct, including insubordination. The terminated employee sued the Administrative Office of the Illinois Courts, asserting that it employed her and that she was fired in retaliation for taking FMLA leave. The trial court granted summary judgment for the agency, reasoning that it never employed her and thus could not have discharged her, and that additionally, there was no evidence of retaliation. A federal appeals court found it unnecessary to resolve whether the Administrative Office was the plaintiff’s employer, but upheld summary judgment for the defendant, given that the plaintiff failed to show any evidence from which a jury could reasonably find that any of her supervisors had retaliatory animus against her. Her mere disagreement about the reasons given for her termination did not show that they were a pretext, particularly when she declined even to participate in the disciplinary process. Tibbs v. Administrative Office of the Illinois Courts, #16-1671, 2017 U.S. App. Lexis  10789 (7th Cir.).

      A former government employee at a registry of deeds office claimed that her rights under the Family and Medical Leave Act had been violated. A federal appeals court rejected this claim because it was not plausible that an email that stated the employee would be out sick for a week caused her termination. The allegations related to a longstanding dispute between the employer and the employee, the employer's fear that the employee may have brought a gun to work, and a subsequent lock-out of the employee, all before the email was sent. She failed to show that she was terminated in retaliation for seeking leave under the FMLA.  Germanowski v. Harris, #16-1306, 2017 U.S. App. Lexis 6288 (1st Cir.).

     A man worked for a Port Authority for four years, primarily managing fleet vehicles. He suffered from migraine headaches and claimed that their frequency increased after he was transferred to the engineering department. He applied for Family and Medical Leave Act (FMLA) leave. Intermittent FMLA leave was approved. An issue came up because he had been reporting only the approximate number of hours he had been working. He was then informed that all economic development work was being eliminated (he had actually done only a small amount of such work), that his “temporary reassignment” to the engineering department was ended, and that he was terminated. He claimed that this was in retaliation for his seeking FMLA leave. A jury rejected this claim and the federal appeals court found that the trial court erred in failing to give a mixed motive jury instruction. A U.S. Department of Labor regulation stated that a plaintiff could rely o a mixed motive theory if there was evidence, either direct or circumstantial, that would lead a reasonable juror to decide that the use of FMLA leave was a negative factor in the employer’s adverse employment action against her. Egan v. Delaware River Port Authority, #16-471, (3rd Cir.),

     A postal employee sued his employer and supervisor claiming that he was terminated in retaliation for taking Family Medical Leave Act (FMLA) leave. A federal appeals court affirmed summary judgment for the defendants, holding that the trial court properly found that the supervisor lacked the requisite knowledge necessary to hold him liable for retaliation in violation of the FMLA, as he thought the employee was out on paid workers’ compensation medical leave following an injury, rather than FMLA leave. Chase v. United States Postal Service, #16-1351, 843 F.3d 553 (1st Cir. 2016).
     A juvenile detention officer sued a county for disability discrimination as well as for retaliation in violation of federal and state disability discrimination statutes and the Family Medical Leave Act (FMLA). The county fired her because she could not meet the job requirement of lifting 40 pounds. The requirement was related, the employer maintained, to protecting juveniles from harming themselves or others. A federal appeals court upheld summary judgment for the employer. The plaintiff was not an otherwise qualified individual because she could not perform the essential functions of her job with or without reasonable accommodation. Because this was still the case at the end of her FMLA leave period, the county did not violate the FMLA by firing her after her leave expired. Scruggs v. Pulaski County, #15-1248, 2016 U.S. App. Lexis 5970 (8th Cir.).
     An account technician working for a state correctional agency was fired based on a rule that authorized termination for those accumulating 12 unauthorized absences. Such absences were automatically expunged when an employee had a clean attendance record for 4 consecutive months. The employee's absences accrued over a seven year period. She claimed that three of the absences were protected by the Family and Medical Leave Act (FMLA), 29 U.S.C. Sec. 2601, as they were for family or medical care. A federal appeals court rejected a FMLA claim, and upheld the dismissal, because the lawsuit was time barred by a two year statute of limitations that began to run each time the employer denied the requests for leave and classified the absences as unauthorized, not at the time that she was fired years later as a result of her overall long term attendance record. Barrett v. Ill. Dep't of Corrs., #13-2833, 2015 U.S. App. Lexis 18144 (7th Cir.).
     A federal appeals court has held that employers who receive a faulty request for leave filed under the Family and Medical Leave Act cannot simply reject it, but instead must inform the employee about the deficiency of their request and give them an opportunity to correct it. The case involved a nurse's assistant at a hospital who requested medical leave for a then undiagnosed condition with symptoms of shortness of breath, nausea and vomiting. After taking five days off in a two week period, she was fired for excessive absenteeism and at that time, the employer stated that her request was faulty and had been denied. The doctor had filled out a medical certification, and her condition was later determined to be diabetes and high blood pressure. The employer took the position that since her condition wasn't diagnosed and her request was only for a month, she could not show that she had a serious medical condition that would persist for an extended period of time, as required by the FMLA. The appeals court rejected that reasoning. Department of Labor regulations, the court ruled, require employers to notify employees of perceived deficiencies in FMLA requests. They must also notify the employee of what information would be needed to correct the incomplete or insufficient request. Hansler v. Lehigh Valley Health Network, #14-1772, 2015 U.S. App. Lexis 10444 (3rd Cir.).
    An officer with the U.S. Capitol Police claimed that her employer violated her rights under the Family Medical Leave Act, 29 U.S.C. Sec. 2615, and retaliated against her for trying to exercise her rights. She sought pre-approval under the Act for a "bank" leave when she was suffering from bouts of depression following her husband's suicide. The Capitol Police had in place a system allowing an employee to obtain a pre-approval of a "bank" of leave under the Act, without identifying specific start or end dates. After providing medical documentation, she was granted a bank of 240 hours of leave. But after approving the leave, her employer ordered her to submit to a fitness for duty exam, stating that the facts supporting her leave request were the basis for the order. Her police powers were then revoked and she was assigned to administrative duties while she waiting to take the exam. These allegations adequately supported an inference of retaliatory motive, so the trial court should not have dismissed the lawsuit. Further, an employer's actions with a reasonable tendency to "interfere with, restrain, or deny" the exercise or attempt to exercise a right to take family or medical leave is enough for a valid interference claim, even if the plaintiff employee actually took the leave. Gordon v. United States Capitol Police, #13-5072, 2015 U.S. App. Lexis 2556 (D.C. Cir.).
     A former employee of the Michigan Department of Corrections sued the warden of the facility at which he worked, claiming that he was harassed, intimidated, retaliated against, and finally fired, all because he took leave under the self-care provision of the Family Medical Leave Act. The remedy sought was reinstatement. That claim, the court held, was untimely under the two year statute of limitations in the Act. While there was an extended three year statute of limitations in the Act for willful violations, the plaintiff's complaint was devoid of any assertion of willfulness. Crugher v. Prelesnik, #13-2425, 2014 U.S. App. Lexis 14767, 2014 Fed. App. 169P (6th Cir.).
     A county employee who took various time off after suffering injuries in an accident claimed that she was fired in retaliation for taking leave under the Family and Medical Leave Act. Rejecting this claim, the appeals court found that even taking the evidence in the light most favorable to the plaintiff, the county established that she would have been fired regardless of her request for leave. Reasons given for her termination included failure to timely submit Fanily and Medical Leave Act forms in a timely manner, untruthfulness regarding the extent of her injury and her ability to work, abuse of sick leave, personal use of a county digital camera, and failure to schedule a requested independent medical examination (IME). Dalpiaz v. Carbon County, Utah, #13-4062, 2014 U.S. App. Lexis 14165 (10th Cir.).
     A defendant city was not entitled to judgment as a matter of law on a Family Medical Leave Act retaliation claim. A reasonable juror could find that the plaintiff, a former employee, was able to perform the essential functions of a position that he interviewed for, since his doctor had released him to perform work, and that there was sufficient evidence to support an inference that the city had a retaliatory motive in not granting him that job. He was the most qualified applicant and a supervisor said that it would be a mistake to hire him because of his past Family Medical Leave Act leave following surgery. A state law disability discrimination claim was rejected as there was no proof that the city knew about his allegedly disabling condition when he sought to be rehired. The appeals court upheld the vacating of a jury award for emotional distress damages as unsupported by the evidence and overturned the trial court's denial of liquidated damages since the city provided no evidence to support the trial court's finding that it refused to rehire the plaintiff in good faith. Jackson v. City of Hot Springs, #13-1772, 2014 U.S. App. Lexis 8810 (8th Cir.).
     An investigator for a county prosecutor's office who had peace officer status and carried a weapon took leave under the Family and Medical Leave Act (FMLA) because of emotional difficulties and severe depression that she was experiencing following the death of her brother-in-law. A California intermediate appeals court ruled that when the employer was not satisfied with the employee's health care provider's certification that she was able to resume work, the employer could restore the employee to the job, but then seek its own independent evaluation of her fitness for duty at its own expense. The employer was concerned because of instances in which her depression had caused her to put her safety in danger, called into question her ability to react properly in tactical situations, and caused her to provide unprofessional, and conceivably false testimony in a criminal proceeding. White v. County of Los Angeles, #B243471, 225 Cal. App. 4th 690, 2014 Cal. App. Lexis 336.
     An Illinois correctional officer's wife suffered from mental health problems relating to opiate dependency. He submitted a Family and Medical Leave Act (FMLA) form seeking leave to take off work intermittently or to work less than a full schedule to care for her, based on recommendations from his wife's psychiatrist, who believe that the need for the leave would continue for an "unknown" period of time. The leave request was approved, and no further medical documentation was asked for, and the employer paid its share of his health insurance costs. After 130 days of absence were recorded, he was told that his FMLA leave had expired, but that he could take up to a year of unpaid leave under a state program, the Illinois Family Responsibility Leave program, but that the state would only contribute to his health insurance cost for six months. After he took 29 absences under that program, a request for two more days off was denied by a warden. He was later notified that the state mistakenly continued to pay for his health insurance beyond the time to which he was entitled, and started withholding 25% of his pay until he had refunded $8,291.83. He sued the state, claiming interference with FMLA rights. A jury returned a verdict in favor of the state. The trial judge, however, entered a judgment notwithstanding the jury's verdict finding that the plaintiff's FMLA leave should have lasted one additional month, and awarding him, therefore $1,222.10 for that one month's medical benefits cost, a ruling the appeals court upheld. Holder v. IL Dep't of Corrs., #12-1456, 2014 U.S. App. Lexis 8431 (7th Cir.).
     A former postal employee was not required to resolve her claims arising under the Family and Medical Leave Act (FMLA) through arbitration because her union's collective bargaining agreement with the employer did nor clearly and unmistakably require her to do so. The collective bargaining agreement's incorporation of the federal Rehabilitation Act's prohibitions on disability discrimination, however, was sufficiently clear and unmistakable enough to waive her right to sue for claims under that statute in federal court. Because the plaintiff had subsequently retired, she lost her standing to seek injunctive relief, as she could not realistically face a continuing threat of violation of her rights under the FMLA. Gilbert v. Donahoe, #13-40328, 2014 U.S. App. Lexis 8182 (5th Cir.).
     A public employee's mother was diagnosed with end-stage heart failure. The employee acted as her mother's caregiver, administering insulin, draining fluid from her heart, and bathing and dressing her. The employee requested unpaid leave from her job to accompany her dying mother on a six-day trip to Las Vegas to fulfill her dying mother's lifelong dream. The employer denied the request, but the employee claimed that she was not notified of the denial before going on the trip. Months after the trip, the employer terminated the employee for alleged unauthorized absences during the trip. A federal appeals court upheld a trial court's ruling in favor of the terminated employee on a claim under the Family and Medical Leave Act, authorizing unpaid leave to care for relatives, including a parent with a serious health condition. The lower court had stated that "where the care takes place has no bearing on" protection for family leave under the statute, and denied summary judgment to the employer. Ballard v. Chicago Park Dist., #13-1445, 2014 U.S. App. Lexis 1747 (7th Cir.).
     An Arkansas state agency employee was not entitled to leave under the Family Medical Leave Act as she had not been employed for 12 months and could not assert a claim for disability discrimination when she could not perform the essential functions of her job, with or without accommodation. Hill v. Walker, #13-1381, 2013 U.S. App. Lexis 24835 (8th Cir.).
     A county employee filed suit under the Family Medical Leave Act, 29 U.S.C. Sec. 2601, claiming that she was improperly demoted in retaliation for having left work to take care of her ill uncle. The trial court granted summary judgment to the defendants. On appeal, the court rejected the plaintiff's argument that the employer was equitably estopped from disputing her eligibility for leave because her manager had approved it. Assuming for the purposes of argument that equitable estoppel under federal common law applied to the Family Medical Leave Act, the plaintiff failed to assert a valid case for estoppel in this case. She failed to show that she relied on any misrepresentation. Dawkins v. Fulton County, #12-11951 2013 U.S. App. Lexis 19918 (11th Cir.).
     After a police dispatcher was fired, he sued under the Family Medical Leave Act (FMLA). The trial court ruled that he did not qualify as an eligible employee under the law because the city had only 41 employees, not the required 50. It regarded between 25-30 volunteer firefighters as not constituting employees. The federal appeals court reversed, finding that these firefighters were employees because they were paid $15 an hour when responding to emergency calls or maintaining equipment, even though they were not required to respond to emergency calls, had no consistent schedule, and did not receive health insurance, vacation or sick time or social security benefits. They constituted employees both for purposes of FMLA and the Fair Labor Standards Act. Mendel v. City of Gibraltar, #12-1231, 2013 U.S. App. Lexis 16922, 2013 Fed App. 0232P (6th Cir.).
     A correctional clerical employee's job involved looking for coded gang messages in inmate mail. She filed a lawsuit under Americans with Disabilities Act (ADA), 42 U.S.C. 12112(a), and the Family Medical Leave Act (FMLA), 29 U.S.C. 2612(a)(1)(D), claiming that her allergic reaction to the use of scented candles and wall plug-ins around her work area constituted a disability. A federal appeals court held that this did not qualify as a disability under the ADA and that her employer had not received her FMLA certification before an applicable deadline, so that her rights under that statute were not violated. Milton v. Texas Dept. of Criminal Justice, #12-20034, 2013 U.S. App. Lexis 4177 (5th Cir.).
     A correctional employee was forced to take intermittent leave after he was diagnosed with abdominal and heart conditions. He subsequently claimed that he was fired for supposed attendance problems because of taking leave, in violation of his rights under the Family and Medical Leave Act, and in retaliation for exercising those rights. A second employee, after being placed on stress leave by her physician, claimed that a supervised punished her for taking leave by disciplining her and increasing her workload. While a state employee can receive damages for violations of the family care provisions of the Family and Medical Leave Act, prior Sixth Circuit precedent established that they may not receive money damages for the employer's violations of the statute's self-care provisions. Claims for violations of that are barred by states' sovereign immunity, and there can be no individual liability for a public employer under the law. Equitable claims, such as claims for reinstatement are not barred. Diaz v. Mich. Dept. of Corrections.. #11-1213, 2013 U.S. App. Lexis 361, 2013 Fed. App. 3P (6th Cir.).
     A county employee had worked as supervisor of released adult offenders for a decade before developing sacroiliac joint dysfunction. This condition rendered her unable to work outside of her home, or to visit the offenders in the jail or at their homes. She was granted a lengthy leave of absence, but was still unable to perform all of her job functions. She was then fired. Her claims under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) were both properly rejected as she could not show that she could return to her job, with or without reasonable accommodations when her FMLA leave ended. She was not an "otherwise qualified" disabled person under the ADA, as supervising offenders in person was a necessary component of her job which she could not perform. At the time she was fired, the employer had no reasonable estimate of when, if ever, she would be able to resume all of her essential job functions. Robert v. Board of County Commissioners of Brown County, #11–3092, 2012 U.S. App. Lexis 18365 (10th Cir.).
     A state court employee sued his employer for alleged violations of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.S. § 2601 et seq., claiming that it had refused to provide him with self-care leave (personal sick leave). A plurality of the U.S. Supreme Court ruled that the provisions of the statute concerning leave for self-care were distinguishable from those concerning family-care leave. On claims for family-care leave, the Eleventh Amendment sovereign immunity from suit enjoyed by the states has been validly abrogated based on evidence at the time of the law's enactment that state family-leave policies concerning leave for the care of a spouse, son, daughter, or parent with a serious medical condition discriminated against women. No such evidence was presented about similar discrimination on self-care leave policies. Congress did not abrogate the states' Eleventh Amendment immunity on claims under the FMLA concerning denials of self-care leave. Coleman v. Court of Appeals of Maryland, #10–1016, 2012 U.S. Lexis 2315.
     A Fire and Safety Officer on the night shift at a state facility for delinquent boys failed to show that he was terminated because of his Caucasian race. He did state possibly meritorious claims for violations of his rights under the Family and Medical Leave Act (FMLA), however, as well as for retaliation against him for exercising his rights under the FMLA. He intended to visit his mother when his shift ended because he had been informed that she was not likely to survive the night. When his replacement called in sick, his supervisor allegedly ordered him to remain at work under threat of being fired, even though a co-worker voluntarily stated that they would take over. The appeals court reasoned that not allowing the officer to go be with his dying mother may have violated his rights under the FMLA even though his sister was available to care for her. Under current regulations covering leave requests, an employee need not be the only family member available to care for a sick individual to qualify for leave. Roman v. Michigan Department of Human Services, #10-2174, 2012 U.S. App. Lexis 3004; 2012 Fed. App. 0046P (6th Cir.).
     The office manager for a county court's probation office was fired on the recommendation of her supervisor who was dissatisfied with her frequent absences from work because of her kidney problems, heart disease, and diabetes. The supervisor can be held personally liable for her termination in alleged violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2611. on the basis of its provision imposing liability on "any person who acts, directly or indirectly, in the interest of an employer." The court found that the supervisor acted as an agent for the employer. The appeals court, therefore, overturned summary judgment for the supervisor. Haybarger v. Lawrence County Adult Probation and Parole, #10–3916, 2012 U.S. App. Lexis 1776 (3rd Cir.).
     A county employee made accusations that a county commissioner sexually harassed her and subsequently took time off from her job, stating that she was depressed and anxious and believed that she was experiencing hostility at work after pressing her harassment claim. When informed that her available leave under the federal Family and Medical Leave Act (FMLA) was expired, she submitted her resignation, and sued the county for allegedly interference with her FMLA rights, constructive discharge, and unlawful retaliation. An appeals court upheld the rejection of all these claims. It noted that the plaintiff had been granted a full twelve weeks of leave under the FMLA during each year that she requested it, that no actions taken by the employer would have intimidated a reasonable employee into failing to report sexual harassment claims, and that there was no evidence concerning the employer's intent and actions that supported the constructive discharge claim. Quinn v. St. Louis County, #10-3332, 653 F.3d 745 (8th Cir. 2011).
     A former firefighter won a judgment against a city in excess of $1 million under the Family and Medical Leave Act (FMLA). He later filed a Chapter 7 bankruptcy petition, but did not list the judgment as an asset of the bankruptcy estate. After his bankruptcy discharge was granted, the judgment was discovered, the discharge revoked, and the bankruptcy case reopened, with the bankruptcy trustee seeking to collect the judgment from the city for the benefit of the firefighter's creditors. A federal appeals court, ruling en banc, rejected the argument that the firefighter's fraudulent concealment of the judgment judicially estopped the trustee's claim. Reed v. City of Arlington, #08-11098, 2011 U.S. App. Lexis 16652 (5th Cir.). Editor's note: The fact that the majority of the funds paid would go to the lawyer who represented the firefighter in the prior FMLA case did not alter the result, as the attorney had no knowledge of the filing of the bankruptcy petition.
     Changes to FMLA for federal workers. Revised rules would allow up to 12 weeks of unpaid leave if a family member is on active duty in the Armed Forces or has been notified of an impending call. Qualifying Exigency Leave, 75 (223) Federal Register 70845-70850 (Nov. 19, 2010).
     U.S. Dept. of Labor clarifies the definition of "son or daughter" under Sec. 101(12) of the Family and Medical Leave Act (FMLA). DoL Wage & Hour Div. Administrator, Interpretation #2010-3.
     Under the FMLA, front pay is an equitable remedy that must be determined by the court rather than by the jury, both as to the availability of the remedy and the amount of any award. Traxler v. Multnomah County, #08-35641, 596 F.3d 1007, 2010 U.S. App. Lexis 4050 (9th Cir.).
     OPM issues final sick and funeral leave regulations modifying the definitions of family member and immediate relative. New and expanded definitions now cover grandparents and grandchildren, same-sex and opposite-sex domestic partners, stepparents, stepchildren, foster, guardianship, and similar relationships. They do not cover statutory FMLA absences. Absence and Leave; Definitions of Family Member, Immediate Relative, and Related Terms, 5 CFR Part 630, 75 (113) Federal Register 33491 (Jun. 14, 2010).
    Arbitrator finds that management unfairly denied an officer the right to work secondary employment while he was on FMLA leave due to the birth of a child. The city had no policy against moonlighting while taking family leave. City of Warrensville Heights and Ohio PBA, 126 LA (BNA) 1313, FMCS Case #09/54968 (Lalka, 2009).
     Enlarging the scope of the Family and Medical Leave Act, the Third Circuit holds that the anti-retaliation provision protects employees who claim they were fired for merely asking permission to take a leave, and is not limited to those who actually exercise the right. “It would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.” Erdman v. Nationwide Insur., #07-3796, 2009 U.S. App. Lexis 20979 (3rd Cir.).
     Federal court upholds a FMLA claim, after a public employee was fired following her return from medical leave for chemical sensitivity to paper toxins. Additionally, if a FMLA claim is based on the same facts as the state law claim, the result can differ. Sanders v. City of Newport, #07-0776, 2009 U.S. Dist. Lexis 19101 (D. Ore.).
     Federal court rejects a FMLA claim brought by a city worker who was fired for excessive absenteeism. She had told her supervisor she did not want to take FMLA leave. Knox v. City of Monroe, #07-606, 2009 U.S. Dist. Lexis 1014 (W.D. La.).
     U.S. Dept. of Labor, Wage & Hour Division publishes new Family Medical Leave Act regulations, effective Jan. 16, 2009. They cover military leave and HIPAA. Revised Final Regulations Under the Family and Medical Leave Act, RIN 1215-AB35.
     Office of Personnel Management revises rules pertaining to emergency leave for General Schedule employees. Changes in Pay Administration Rules, 73 (217) Federal Register 66143 (11/7/2008).
     Fifth Circuit holds that the anti-retaliation provisions of the FMLA do not automatically protect a coworker or spouse of an employee from retaliation. Elsensohn v. St. Tammany Parish Sheriff's Office, #07-30693, 530 F.3d 368 (5th Cir. 2008).
     Arbitrator holds that management did not violate the bargaining agreement by denying a correctional officer leave without pay to attend an eight-week certification program for employment as municipal police officer. Although the CBA provided that "employees who request leave for correctional-related educational purposes shall be granted leave without pay for such purposes," the curriculum would not have advanced his knowledge of corrections and the grievant intended to pursue employment as police officer. County of Erie, Penna. and SEIU L-668, 124 LA (BNA) 1733 (Dean, 2008).
     Even if a police employee's leave was protected under the FMLA, her case would still fail because there was no evidence of a connection between her leave in 1999 and her termination in May 2003. Ney v. City of Hoisington, #07-3086, 2008 U.S. App. Lexis 2882 (10th Cir.).
     Involuntary placement of a detention officer with lupus on unpaid FMLA leave during a chicken pox outbreak did not violate ADA, since her physician cautioned her against an exposure to chicken pox. Andrews v. Geo Group Inc., #06-cv-00844, 2007 U.S. Dist. Lexis 77474, 20 AD Cases (BNA) 171 (D.Colo).
     Federal appeals court affirms a jury verdict against a Louisiana sheriff for a FMLA violation, including $16,400 in back pay and $13,128 in front pay. Management failed to provide her with an individualized notice that leave would be counted against her FMLA allowance, as required under 29 C.F.R. §825.208(a)-(b)(1). Downey v. Strain, #06-30613, 2007 U.S. App. Lexis 28796 (5th Cir.).
     Federal court denies a FMLA claim that a police officer was compelled to use her vacation time for a two-day absence caused by a psychological impairment. The condition did not require continuing treatment, was not a serious health condition within the meaning of 29 U.S. Code §2612(a)(1)(D) and an inability to attend training is not a disability. Lundy v. Town of Brighton, #06-CV-6280L, 2007 U.S. Dist. Lexis 83132 (W.D.N.Y.).
     FMLA claim rejected; corrections officer exceeded the 504 hours of excused leave and was lawfully terminated for his absences. Coker v. McFaul, #06-3587, 2007 U.S. App. Lexis 16565 (Unpub. 6th Cir.).
     Public employees have individual liability under the FMLA, but the defendant was entitled to qualified immunity because it was not clearly established that public employees are subject to individual liability under the FMLA when the defendant terminated plaintiff's employment. Modica v. Taylor, #05-50075, 2006 U.S. App. Lexis 23372 (5th Cir. 2006). {N/R}
     State corrections dept. was entitled to sovereign immunity under 11th Amendment to U.S. Constitution from an employee's lawsuit seeking monetary damages for interfering with his FMLA rights. Toeller v. Wis. Corrections Dept., #05-4064. 2006 U.S. App. Lexis 21690, 11 WH Cases2d (BNA) 1380 (7th Cir. 2006). {N/R}
     Fourth Circuit holds that the Family and Medical Leave Act does not provide an employee with an absolute right to be restored to his or her previous job on return from approved leave. Yashenko v. Harrah's NC Casino, #05-1256, 2006 U.S. App. Lexis 10469 (4th Cir. 2006).{N/R}
     Seventh Circuit holds that management can impose stricter return-to-work provisions than those in FMLA -- and the employee was aware of the employer's return-to-work expectations. Harrell v. U.S. Postal Service, #03-4204, 2006 U.S. App. Lexis 11072 (7th Cir. 2006).{N/R}
     Eighth Circuit holds it was not unlawful for a city to run accrued sick leave and FMLA leave concurrently and to limit a police officer's total leave to 12 weeks. Slentz v. City of Republic, #05-1663, 2006 U.S. App. Lexis 11746, 11 WH Cases2d (BNA) 769 (8th Cir. 2006).{N/R}
     Federal appeals court rejects a claim that the FMLA covers unlimited break time to use toilet facilities because of diarrhea induced by diabetes medication. "We are unable to locate a case where temporary FMLA leave was awarded... [for] periodic time away from a desk throughout the work day. Mauder v. Metro. Transit Auth., 2006 U.S. App. Lexis 9306 (5th Cir. 2006). {N/R}
     Arbitrator holds that a county violated the law when it denied FMLA leave to employee to care for her grandmother with Alzheimer's disease; the employee was required to show that grandmother served as her parent when she was child and employee stood in loco parentis. County of Allegheny and A.C. Prison Employees, 122 LA (BNA) 155, Pa. Bur. of Mediation Grievance #5720 (Miles, 2005). {N/R}
     Arbitrator overturns the termination of a public employee for engaging in other employment without permission while on FMLA leave for depression; she received no wages or benefits from her husband's business. Chippewa Valley Schools and Mich. AFSCME L-1884, #A9504-1884-04, 121 LA (BNA) 890 (Daniel, 2005). {N/R}
     Massachusetts becomes 22nd state to allow public workers to take paid leave for organ donation. Mass. Gen Laws. Ch. 149, §33D (2005). {N/R}
     Federal appeals court upholds management's decision to deny a public employee bonus annual leave after he took FMLA leave. Chubb v. City of Omaha, #05-1172, 424 F.3d 831, 2005 U.S. App. Lexis 20913, 10 WH Cases2d (BNA) 1601 (8th Cir. 2005). {N/R}
     Seventh Circuit holds that an employer may not impose return-to-work standards that are more burdensome than the provisions of the Family Medical Leave Act, even if those requirements are embodied in a collective bargaining agreement. Harrell v. U.S. Postal Serv., #03-4204, 415 F.3d 700, 2005 U.S. App. Lexis 14550 (7th Cir. 2005). [2005 FP Oct]
     Fourth Circuit upholds a Dept. of Labor regulation that bars the waiver or release of a worker's FMLA rights, 29 C.F.R. §825.220(d). Taylor v. Progress Energy, #04-1525, 415 F.3d 364, 2005 U.S. App. Lexis 14650, 10 WH Cases2d (BNA) 1281 (4th Cir. 2005). {N/R}
     Dept. of Labor clarifies that ERISA and the FMLA do not preempt more generous state leave laws. Employee Benefits Security Admin. Advisory Opin. #2005-13A (2005). {N/R}
     Third Circuit upholds a police dept. requirement that persons on sick leave notify the city if they leave their homes during normal working hours. A call-in policy does not violate worker rights under the FMLA. Callison v. City of Philadelphia, #04-2941, 2005 U.S. App. Lexis 9043 (3rd Cir. 2005). [2005 FP Aug]
     Federal court in Pennsylvania holds that the 12-month requirement for being an "eligible employee" under the Family and Medical Leave Act should be based on the day leave commences. An employee who had worked less than 12 months, when she gave notice that she was pregnant, was protected because the start of her planned leave was after her one-year anniversary. Beffert v. Penn. Dept. of Public Welfare, #05-43, 2005 U.S. Dist. Lexis 6681 (E.D. Pa. 2005). {N/R}
     Arbitrator holds that management did not violate the bargaining agreement when it stopped paying for health insurance for a pregnant police officer who was on FMLA leave, and ineligible for group coverage. Vil. of Huntley, IL and Metrop. Alliance of Police C-207, 120 LA (BNA) 949, FMCS #040218/03758-A (Cox, 2004). {N/R}
     Sixth Circuit holds that for purposes of the hours-of-service eligibility requirement under the FMLA, an arbitrator's restoration award may include the time that an employee would have worked, but for the employer's wrongful termination. Ricco v. Potter, #03-3294, 377 F.3d 599, 9 WH Cases2d (BNA) 1455, 2004 U.S. App. Lexis 15425, 2004 FED App. 0242P (6th Cir. 2004). {N/R}
     A California law took effect in July that provides workers with as much as 55% of their pay while they take family leave. Maximum weekly payments are $728 in 2004 and $840 in 2005 and lasts up to six weeks. Another six weeks of unpaid leave is available. The program is financed by a 0.08% payroll tax that costs workers a maximum of $55 a year in family leave tax. California Family Temporary Disability Insurance program, S.B. 1661 (enacted 2002; effective 7/7/2004). {N/R}
     Supreme Court declines review of an appellate holding that management did not violate the FMLA or Title VII when it fired a city employee upon his return from leave, after concluding that his work product was poor. Phelan v. City of Chicago, #03-1209, cert. den. 2004 Lexis 2782 (2004); ruling below at 347 F.3d 679, 92 FEP Cases (BNA) 1389, 9 WH Cases2d (BNA) 7 (7th Cir. 2003). {N/R}
     Arbitrator holds that a pregnant employee who was absent from work for six days due to abnormal pain and bleeding, was entitled to leave without pay under FMLA, where she submitted doctor's letter substantiating her condition on the first day she returned. Her need for leave was a medical emergency. Dept. of Homeland Security and AFGE L-1917, 119 LA (BNA) 833 (Lang, 2004). [2004 FP Aug]
     A North Carolina at-will city employee who was fired for absence from work, while recuperating from gunshot wounds inflicted by his wife, had no legal basis to sue the city for wrongful discharge. In the 2-to-1 decision, an appellate court was unwilling to find that domestic violence laws create a public policy requiring employers to hold a job open while a worker recovers from those injuries. Imes v. City of Asheville, #COA03-218, 594 S.E.2d 397, 21 IER Cases (BNA) 359, 2004 N.C. App. Lexis 583 (2004). {N/R}
     Federal appeals court flatly rejects a claim that a worker cannot be fired for inefficiency or other valid reason because he is on FMLA leave. Phelan v. City of Chicago, #02-3862, 347 F.3d 679, 92 FEP Cases (BNA) 1389,2003 U.S. App. Lexis 21344, 9 WH Cases2d (BNA) 7 (7th Cir. 2003). [2004 FP Jan]
     Federal appeals court affirms a jury verdict that a city employee was not fired for requesting FMLA leave. Gibson v. City of Louisville, #02-5473, 2003 U.S. App. Lexis 14329, 2003 FED App. 0233P (6th Cir.). {N/R}
     Arbitrator holds that a grievant was eligible for "assault leave," even if she did not file the proper form. She also was being treated for "post-traumatic stress disorder/panic attacks with agoraphobia," and the filing of a wrong form did not prejudice the employer. Chicago Bd. of Educ. and Chicago Teachers Union, 118 LA (BNA) 349 (Goldstein, 2002).{N/R}
     Constitutionality: Supreme Court rules that the Congress clearly abrogated the Eleventh Amendment immunity of state governments when it enacted the FMLA. Nevada Dept. of Human Resources v. Hibbs, #01-1368, 123 S.Ct. 1972, 2003 U.S. Lexis 4272 (2003).
     An employer could fire a worker who took FMLA leave to care for his wife and newborn child, and was actually managing his wife's restaurant. The employer had a rule prohibiting "unauthorized work for personal gain" while on leave. Pharakhone v. Nissan, #01-5955, 324 F.3d 405, 2003 U.S. App. Lexis 6289, 2003 FED App. 0098P, 8 WH Cases2d (BNA) 1006 (6th Cir. 2003). {N/R}
     Unlike the ADA, under the FMLA an employer did not have to reassign or otherwise accommodate an investigator with fibromyalgia and chronic fatigue syndrome. Alifano v. Merck & Co., 175 F.Supp.2d 792 (E.D.Pa. 2001). {N/R}
     California enacts the country's first paid family leave law. S.B. 1661,codified as Deering's California Unemployment Insurance Code Sections 984, 2601 2613, 2708, 3254, and 3300-3305 (2002). [2002 FP Dec]
     State trooper wins $40,000 in damages and $626,000 in attorney's fees and costs for rejection of his leave request to care for a newborn infant. Knussman v. Maryland, #B-95-1255, 40 (1975) G.E.R.R. (BNA) 894 (D.Md. 2002) -- on remand from 272 F.3d 625, 2001 U.S. App. Lexis 24037 (4th Cir. 2001). [2002 FP Nov]
     Arbitrator finds that management did not violate the bargaining agreement when it limited firefighters' annual, sick leave, or injury leave so that only one per shift would be allowed; the CBA gave the city an unqualified right to determine staffing levels. City of Del City and IAFF L-2171, FMCS Case #01/14531, 117 LA (BNA) 393 (McReynolds, 2002). {N/R}
     Federal appeals court upholds an $84,000 jury award under the Family and Medical Leave Act for a private sector worker who was fired while convalescing after a suicide attempt. Chandler v. Specialty Tires, #0-5395/5593, 283 F.3d 818, 12 AD Cases (BNA) 1659, 2002 U.S. App. Lexis 4743, 2002 FED App. 0100P, 7 WH Cases 2d (BNA) 1217 (6th Cir. 2002). [N/R]
     Police dept. violated the FMLA by denying promotional opportunities to a worker who took unpaid leave because of Graves' disease -- an autoimmune disorder associated with hyperthyroidism, burning eye sensations, nervousness, emotional swings, muscle weakness and palpitations. Darby v. Bratch, #01-2006, 287 F.3d 673, 7 WH Cases2d 1252, 2002 U.S. App. Lexis 6679 (8th Cir. 2002). [N/R]
     Divided Supreme Court strikes down a DoL regulation requiring employers to inform workers that authorized leave counts against their FMLA 12 week entitlement. Ragsdale v. Wolverine World Wide, #006029, 2002 U.S. Lexis 1936. [2002 FP May]
     Evidence that the plaintiff's father suffered from severe depression, which prompted the plaintiff to take time off, was sufficient to create triable issues of fact under the FMLA. Scamihorn v. General Truck Dr. Un., #00-55722, 2002 U.S. App. Lexis 3369 (9th Cir.2002). [N/R]
     A telephone message from an employee who said she was suffering from "depression again" may have given the employer sufficient notice to trigger FMLA leave. Spangler v. Fed. Home Loan Bank, #01-2476, 278 F.3d 847, 7 WH Cases 2d (BNA) 1036, 2002 U.S. App. Lexis 1249 (8th Cir. 2002). [N/R]
     Appellate court sustains the judgment against a state police employee who improperly rejected a post-pregnancy sick leave request by a male trooper, but concludes that the $375,000 jury verdict for emotional distress was excessive. Knussman v. Maryland, #99-2349, 2001 U.S. App. Lexis 24037 (4th Cir.). [2002 FP Jan]
     Federal court in Philadelphia allows a local governmental employer to order a confirming exam for a worker returning from FMLA leave. There was a history of requiring such exams, and the bargaining agreement perpetuated recognized past practices. Conroy v. Township of Lower Merion, #00-CV-3528, 2001 U.S. Dist. Lexis 11460, 7 WH Cases 2d (BNA) 365 (Unpub. E.D. Pa.). [2001 FP 135-6]
     Management improperly denied a firefighter leave because it would result in overtime, and would not adversely affect safety. Centralia (City of) and Centralia Fire Fighters L-618, FMCS #00/14143, 115 LA (BNA) 1185 (Marino, 2001). {N/R}
     Plaintiff's FMLA claim against her state employer was barred by 11th Amendment immunity. Townsel v. Missouri, 99-3873, 233 F.3d 1094, 2000 U.S. App. Lexis 30716, 6 WH Cases2d (BNA) 1025 (8th Cir. 2000). {N/R}
     Arbitrator holds that a state agency did not have just cause to discharge a worker whose driver's license was suspended, even though its policy was to do so, where he suffered from major depression, and should have been placed on FMLA leave before his license was suspended and agency took disciplinary action. Ohio Dept. of Transp. and Ohio Civ. Serv. Emp. Assn., #31-01-00309-08-01-06, 115 LA (BNA) 563 (Smith, 2001). {N/R}
     Summary judgment is inappropriate on a FMLA claim brought by a transsexual employee who was fired after undergoing sexual reassignment surgery. Gender dysphoria can be a "serious health condition" under the statute. Sander v. May Dept. Stores, #4:00CV576-DJS, 2001 U.S. Dist. Lexis 11495, 69 L.W. 1752, 6 WH Cases2d (BNA) 1729 (Unpub. E.D. Mo., 2001). (N/R}
     Firefighter was not entitled to sick leave to care for a live-in woman who was pregnant with his child. Neither the FMLA or the CBA defines a her as a domestic relative. McAlestar, City of and IAFF L- 2284, FMCS Case #00124-04902-8, 114 LA (BNA) 1180 (Crow, 2000). [2000 FP 169-70]
     Arbitrator rules that the city violated the bargaining agreement when it limited a police officer's sick leave to 12 weeks, which is the maximum under the FMLA. The CBA did not contain language that equates sick leave to FMLA leave. Englewood, Ohio and Ohio PBA, AAA Case No. 52-390-00269-99, 113 LA (BNA) 624 (Kohler, 1999). {N/R}
     Two federal appeal circuits hold that the Congress did not have the authority to abrogate the sovereign immunity of states, under the 11th Amendment, for claims arising under the FMLA. Chittister v. Dept. of Comm. and Econ. Dev., 226 F.3d 223, 2000 U.S. App. Lexis 22229, 6 WH Cases2d (BNA) 545 (3rd Cir. 2000); Kazmier v. Widmann, #99-30242, 225 F.3d 519, 2000 U.S. App. Lexis 21524, 6 WH Cases2d (BNA) 481 (5th Cir. 2000). {N/R}
     Two federal courts hold, that under the FMLA, an employer cannot require a “fitness for duty” exam of an employee who has been certified by a physician or psychologist that he/she is able to return to work, unless the employee's post-leave behavior justifies it. Routes v. Henderson, 1999 U.S. Dist. Lexis 9835, 5 WH Cases2d (BNA) 768 (S.D. Ind.); Underhill v. Willamina, 1999 U.S. Dist. Lexis 9722 (D.Or.). [1999 FP 174]
     Management should order a FFDE before a worker seeks medical leave. At least one court has held that under the FMLA, an employer cannot require a FFDE of an employee who has been certified by a physician or psychologist that he/she is able to return to work, unless the employee's post-leave behavior justifies it. Albert v. Runyon, 6 F.Supp.2d 57, 1998 U.S. Dist. Lexis 7505 (D.Mass.). [1998 FP 122]
     Two more federal courts hold, that under the FMLA, an employer cannot require a "fitness for duty'' exam of an employee who has been certified by a physician or psychologist that he/she is able to return to work, unless the employee's post-leave behavior justifies it, citing Albert v. Runyon: Routes v. Henderson, 1999 U.S. Dist. Lexis 9835, 5 WH Cases2d (BNA)768 (S.D. Ind.) and Underhill v. Willamina, 1999 U.S. Dist. Lexis 9722 (D.Or.). {N/R}
     Federal jury awards a state trooper $375,000 after management denied him FMLA parental leave to help care for a new baby. Knussman v. Md. St. Police, 935 F.Supp. 659 (prior ruling, D.Md. 1996). [1999 FP 86]
     11th Amendment exempts state agencies, officials and supervisors from monetary liability under the FMLA, including back pay claims. Reinstatement and other injunctive relief is available. McGregor v. Goord, 1998 WL 549544, 1998 U.S. Dist Lexis 13453 (N.D.N.Y.). [1998 FP 165]
     Sixth Circuit concludes that the FMLA provides a right to a jury trial. Frizzell v. Southw. Mtr. Frt., #97-5846, 1998 U.S. App. Lexis 22015, 1998 FED App. 0285P (6th Cir.). [1998 FP 165]
     A laid-off worker can sue under the FMLA for an employer's failure to rehire because of his prior use of protected medical leave. Duckworth v. Pratt, #97-2224, 1998 U.S. App. Lexis 16270, 4 WH Cases2d (BNA) 1281 (1st Cir. 1998). {N/R}
     Federal court applies the FMLA to the MD state police, after it denied parental leave to a male trooper. 11th Amendment bars Sec. 1983 damages, but not actions under the FMLA. Knussman v. Md. St. Police, 1996 U.S.Dist. Lexis 11356, 935 F.Supp. 659 (D.Md.). [1997 FP 86-7] Note: The plaintiff was awarded $375,000 by a jury in 1999.
     Rectal bleeding is a not a “serious medical condition” under the FMLA. Bauer v. Varity Dayton-Walther Corp., 118 F.3d 109, 1997 U.S. App. Lexis 16601 (6th Cir.). {N/R}
     1986 contract clause requiring arbitration of "any claim or controversy" did not waive the rights of employees to sue for federal handicap discrimination or FML violations. Hoffman v. Aaron Kamhi Inc., 3 W&H Cas.2d (BNA) 445, 1996 U.S.Dist. Lexis 3600, 927 F.Supp. 640 (S.D.N.Y.). [1996 FP 115]
     Appeals court upholds city's refusal to allow a police officer leave to care for her police officer husband who was injured in the line of duty. Crystal v. City of N.Y., 634 N.Y.S.2d 67 (A.D. 1995). [1996 FP 73]
     Supervisors may be individually liable for violations of the F&MLA. Freemon v. Foley, 1996 U.S. Dist. Lexis 3695; see also 911 F.Supp. 326 (N.D.Ill.1995). {N/R}
     Dept. of Labor issues final rule interpreting the Family and Medical Leave Act of 1993. 60 (4) Federal Register 2180-2279 (1/6/95), 66 (764) FEP Manual (BNA) 403:7101-7166. [1995 FP 71]
     Arbitrator rules a city could prevent a woman police officer from using paid sick leave to care for an adopted newborn girl, although leave is allowed birth mothers. Columbus (City of) and FOP L-9, 102 LA (BNA) 477 (1994). [1994 FP 150]
     Colo. appellate court finds that Denver did not engage in sexual orientation discrimination by disallowing an employee's family leave request to care for her domestic partner. Ross v. Denver Dept. of Health and Hospitals, 1994 Colo.App. Lexis 97 (Colo.App. 1994). [1994 FP 120]
     U.S. Dept. of Labor issues Interim Guidelines to implement the Family and Medical Leave Act of 1993. June 4, 1993 Federal Register 31794. [1993 FP 119]

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