Articles Posted in Family Medical Leave

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State and Federal laws prohibit discrimination in hiring. Illegal discrimination occurs when an employer fails to hire due to a job applicant’s age, race, national origin, religion, gender, sexual orientation, disabilities, and other protected traits. Discrimination during the hiring process can often be subtle or overlooked.  Employees should be concerned if asked questions that relate to classes protected by discrimination laws. Questions about an applicant’s disabilities, medical information, or use of medical leave may reflect discriminatory motives. If an employer asks about any medical history, or implies that they have concerns about a medical condition, this may evidence discrimination.  Hannaford Supermarkets are in the process of hiring substantial numbers of employees in the context of the pandemic.

Hannaford has reportedly hired more than 2,200 store employees since mid-March and has announced plans to hire about 2,000 more associates at stores across its five-state footprint of Maine, New Hampshire, Vermont, New York and Massachusetts according to the Portland Press Herald. As part of the hiring effort, Hannaford has indicated that it was working with major employers in the hospitality, tourism and retail fields to offer furloughed workers full- and part-time store-level job opportunities, including temporary positions. While Hannaford’s hiring binge may be good news for many, one of the questions asked of applicants is concerning. Hannaford’s application asks applicants: “Are you currently on layoff status, leave of absence or otherwise suspended from employment and subject to recall by another employer?  If “yes,” give all details.” This question means that applicants who are on legally protected medical leave may be required to disclose the leave and the reasons for taking it. To the extent that Hannaford’s question elicits information regarding employee’s protected medical leaves and related disabilities and other medical conditions this could lead to unlawful discrimination in hiring.

If you have applied for a position, that you were otherwise qualified for, and you were not offered a job after answering a question such as this, please contact Employee Rights Group for a free consultation.

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Workers’ rights advocates in Maine have focused their attention on paid sick leave. The Portland City Council is currently considering legislation proposed by the Maine Women’s Lobby and Southern Maine Worker’s Center which would require employers to give all employees paid sick time. The new law would require Portland businesses to provide employees with one paid sick hour for every 30 hours worked. Mayor Strimling supports the bill.

At the state level, advocates are collecting signatures to put the issue of paid sick leave on the ballot next election. This proposal also would require employers to provide one paid sick hour for every 30 hours worked. The Maine People’s Alliance is spearheading the collection of signatures for this ballot measure.

“I’m proud to be part of a group of worker, family and health care advocates who have taken the first step in submitting language for a referendum to guarantee access to earned paid sick days for all Maine workers,” said Jennie Pirkl, organizing director at the Maine People’s Alliance.

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Two former Walmart employees in New York have filed a class action against the company under New York’s law that entitles pregnant employees to reasonable accommodations.  Under a New York law enacted in 2016, employers must provide pregnant employees with reasonable accommodations for pregnancy-related medical conditions, such as changes to their work schedules or leave from work.

According to the advocacy group representing the women who filed the lawsuit, New York is one of 23 states with a law that have enacted laws which specifically entitle pregnant employees to reasonable accommodations for pregnancy-related medical conditions.  Maine does not have such a law and, thus, it is more legally complicated in Maine to establish that a pregnant worker is entitled to a reasonable accommodation.

The class action, filed in New York state court, alleges that Walmart violated this New York state law because it assessed attendance points to the two women when they had to miss work due to pregnancy-related medical conditions.  According to the lawsuit, Walmart has an attendance policy, similar to many employers, where it assesses points to employees who have unscheduled absences and then disciplines them when they accumulate a certain number of points.  The two women who filed the lawsuit had to miss work in order to seek medical care related to their pregnancies and Walmart held that time missed against them.  According to the women, they asked if they could be excused from work for these medical reasons but Walmart managers refused and, so, the women had to choose between their jobs and their health.

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Last week, a federal judge held that a jury could reasonably find that Hannaford fired one of the Maine Employee Rights Group’s (MERG) clients because of his age, disabilities, and need for medical leave.  MERG’s client worked for Hannaford for over thirty years and served as the Produce Manager at the Waldoboro Hannaford store when Hannaford fired him.  At the time of his termination, he was 58 years old; suffered from heart disease, knee and back impairments, and a shoulder injury; and had repeatedly needed medical leaves due to his medical conditions.  Hannaford fired MERG’s client on the day he returned from a medical leave.

Before MERG’s client went out on medical leave, the Waldoboro store was planning to undergo a major remodel and expansion which would increase both the sales volume of the store and the stress on the store’s employees.  The store manager asked MERG’s client whether he could “handle” the stress associated with the expansion but there was evidence that he did not ask other managers in the store—who were younger and not disabled—this same question.

While MERG’s client was out on medical leave, Hannaford claims it received information indicating that MERG’s client was not complying with food safety policies relating to the preparation of cut fruit.  Hannaford launched a food safety investigation and the store manager and an associate relations manager met with MERG’s client in connection with that investigation on the day he returned from medical leave.  During this meeting, the store manager claims MERG’s client admitted that he knowingly violated food safety policy and that is why Hannaford claims it fired him.  MERG’s client denies that he admitted to violating policy and says that no one even asked him if he thought he was violating food safety policy.

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This week a Federal judge in Maine denied, in large part, Hannaford’s motion to throw out a lawsuit filed by the Maine Employee Rights Group (MERG).  MERG argued that Hannaford violated disability discrimination and medical leave laws when it refused to modify our client’s schedule.  As a result, the case is slated to go to trial later this year.

MERG’s client works as an Assistant Manager in the Meat Department of the Waterville, Maine Hannaford store.  He suffers from Lyme disease and, due to this disability, he asked Hannaford for a modified schedule as a reasonable accommodation which would allow him to start and finish work earlier in the day.  He needed this early schedule because his Lyme disease symptoms (which include fatigue, dizziness, and pain) escalate in the late afternoon.  Our client had been working this early schedule for a long time, without any problems, and then Hannaford changed his schedule to make it consistent with the schedules of Assistant Meat Department Managers in other stores.  Even though our client got a note from his doctor supporting his request for the early schedule, Hannaford denied the request.  The judge held that a reasonable fact-finder could determine that Hannaford’s denial of our client’s request violated his right to reasonable accommodations and was discriminatory under state and federal disability discrimination laws.

After Hannaford denied our client’s request to go back to his old schedule, he asked for a reduced leave schedule under the FMLA.  Under the FMLA (state and federal), eligible employees are entitled to a reduction in their hours if they need such a reduction due to a serious health condition.  Our client still thought he was entitled to start and finish work earlier, as a reasonable accommodation for his disability; but because Hannaford denied that request, he and his doctor asked Hannaford to reduce his schedule so that he would consistently finish work in the mid-afternoon.  Hannaford denied this request as well.  To add insult to injury, Hannaford also retaliated against our client for requesting a modified schedule by refusing to let him punch-in early.  The judge held that a reasonable fact-finder could determine that Hannaford violated our client’s rights under the FMLA and unlawfully retaliated against him when it refused to let him punch-in early.

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Maine legislators held a hearing this week on a bipartisan bill to explore the feasibility of an employee-financed paid family medical leave system.  House Majority Leader Erin Herbig (D-Belfast) and Sen. Amy Volk (R-Scarborough) have co-sponsored the bill.  Herbig and Volk previously sponsored a bill to establish an employee-financed paid family medical leave system but they are now backing this new bill which would just study how much such a system would cost.

The original paid family medical leave bill that Herbig and Volk sponsored would have financed paid family leave with a maximum 0.5% pay deduction from employees’ pay.  It would not have required businesses with fewer than 15 employees to participate but would give them the option to participate if they wanted.

“Creating a paid family leave medical system on the shoulders of our businesses would not benefit anyone. This bill has never proposed to do that,” said Herbig. “There isn’t an easy fix but I’m tired of spinning our wheels when there are small steps we can take to creating a cost-effective, paid family medical leave system in Maine that works for both families and businesses across our state.”

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A Suffolk County jury slapped the Massachusetts Water Resources Authority (MWRA) with a $1.2 million verdict yesterday because it discriminated against an employee who needed medical leave.

The employee, a data resources manager, suffered from nerve tumors in his feet which required surgery and recovery time. The employee had a pre-planned vacation to Mexico scheduled for the period of time he was going to be recovering from his surgery. His doctor said he could go on the vacation and he told MWRA about the vacation when he requested medical leave. Even though his doctor cleared him to go to Mexico during his medical leave, MWRA fired him supposedly for going to Mexico during his medical leave.

The employee’s lawyer argued to the jury that MWRA’s claimed reason for firing the employee was illogical, false, and just a pretext to fire him because he needed medical leave. Given the verdict, the jury obviously bought the employee’s lawyer’s argument.

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Yesterday, the Maine Employee Rights Group (“MERG”) secured another victory for our client in a federal case against Woodlands Senior Living of Brewer (“Woodlands”). As we previously reported, a Bangor jury found that Woodlands unlawfully discriminated against our client because she needed medical leave for a disability. The jury awarded our client $15,000 in back pay and, yesterday, the judge awarded our client an additional $15,000 plus interest (for a total of $30,000 plus interest) because Woodlands failed to prove that it acted in good faith when it violated our client’s rights.

In addition to awarding our client another $15,000, plus interest, the judge ordered Woodlands to change our client’s personnel records so that they indicate that Woodlands unlawfully terminated her for discriminatory reasons. The judge also ordered Woodlands to submit documentation proving that it trained its managers on the law and Woodlands’ policies regarding disability discrimination and employee family medical leave entitlements.

Because MERG prevailed in this case, Woodlands will also be required to pay attorney fees to MERG for our work on this case. The court has not yet issued a ruling on the amount of attorney fees that Woodlands will have to pay MERG.

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The Mount Desert Islander published the article below about the Maine Employee Rights Group’s (MERG) lawsuit against Mt. Desert Hospital.

Lawsuit alleges discrimination

BANGOR — A former Mount Desert Island Hospital employee has filed a lawsuit in federal court claiming the hospital failed to accommodate her disability stemming from medical issues, and retaliated against her for using the Family Medical Leave Act.

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The federal Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of leave per year for certain qualifying reasons, like a serious health condition or the birth of a child. For employees who need to take all, or close to all, of the 12 weeks they are entitled to, they should know how their employers calculate their leave years. This is because every time a new leave year begins, employees get 12 more weeks of FMLA leave.

Under the FMLA, an employer can choose one of four ways to calculate its leave year:

  1. the calendar year;
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