Articles Posted in Family Medical Leave

In Escriba v. Foster Poultry Farms, the Ninth Circuit Court of Appeals, a federal appellate court in California, held that an employee who takes leave that would qualify for protection under the Family and Medical Leave Act (FMLA) may choose not to have that leave count as FMLA leave. Under the FMLA, employers must permit employees eligible for FMLA to take 12 weeks of leave per year for FMLA-qualifying reasons, such as to care for a child or parent with a serious health condition. According to the Ninth Circuit, an employee can decide to take accrued paid time off (PTO) for a FMLA-qualifying absence and the employer cannot deduct that time from the 12 weeks of FMLA available to her.

Some employer advocates are distressed about the Escriba decision. Many employers prefer to require employees to use their FMLA leave whenever they take leave from work for a FMLA-qualifying reason. These employers want employees to exhaust their FMLA leave as quickly as possible so that they can limit the amount of leave they have to give their employees. If an employee can take PTO to, for instance, care for a parent with a serious medical condition and choose not to have that PTO count against her 12 weeks of FMLA leave, the employee can save her FMLA leave for another time–something many employers don’t want.

While the Escriba decision would seem to help employees, it did not help Ms. Escriba. Ms. Escriba lost her case because she chose not to designate her leave from work to care for a sick parent as FMLA leave and, consequently, the leave was not protected. Thus, the employer was legally permitted to fire her when she violated its “no-show, no-call” policy even though she was on a leave of absence that would have been protected under the FMLA had she chosen to designate it as FMLA leave.

Earlier this month, the U.S. Department of Labor (DOL) updated its guidance to employers and employees on the Family and Medical Leave Act (FMLA). The new guidance defines the term spouse under the FMLA as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” The DOL updated its guidance in light of the Supreme Court’s decision in U.S. v. Windsor where the court found that the Defense of Marriage Act (DOMA) unconstitutionally prohibited same-sex spouses from receiving the same benefits under federal law as opposite-sex spouses. Same-sex marriage is legal in Maine and, as such, Mainers in same-sex marriages can now take FMLA leave to care for a spouse with a serious health condition. Even before this change in the federal FMLA, Mainers in same-sex marriages could take leave from work under Maine law to care for a spouse with a serious health condition but the federal FMLA provides for more leave than Maine law.

This new guidance from the DOL does not address the situation where a same-sex married couple gets married in a state where same-sex marriage is legal and then moves to a state where it is not. So, for instance, if a same-sex married couple from Maine moved to Texas, this DOL guidance does not address whether one spouse could take FMLA leave to care for the other if he or she suffered from a serious medical condition.

The Human Rights Campaign, a gay rights advocacy group, said the following about this new guidance from the DOL:

Yesterday, the U.S. First Circuit Court of Appeals, which has jurisdiction over Maine, other New England states, and Puerto Rico, affirmed a jury verdict against Walgreens in a Family and Medical Leave Act (FMLA) case. This case presented an interesting issue of first impression for the First Circuit–whether an employee fired in violation of the FMLA is entitled to lost overtime pay.

The case arose in Puerto Rico when Walgreens fired the plaintiff, Juan C. Pagan-Colon, almost immediately after he presented an assistant manager at his store with a note from his doctor that said he would need a week of medical leave. Pagan-Colon presented this note to the assistant store manager on May 17, 2008. On May 23, 2008, the store manager mailed Pagan-Colon a letter dated May 19, 2008, which said that he had to contact Walgreens management within 48 hours to discuss his eligibility for disability leave or else there might be “negative consequences.” Even though it was impossible for Pagan-Colon to meet that 48-hour deadline since the manager didn’t mail the letter until after the deadline expired, Pagan-Colon immediately went to the store to discuss the situation. After Pagan-Colon explained to the store manager that he had provided a doctor’s note to the assistant store manager, the store manager fired him and refused to provide him with an explanation for the termination decision.

After firing Pagan-Colon, the store manager realized that he should speak to the company’s lawyer since Pagan-Colon had a doctor’s note excusing his absence. The company claimed that, at that point, it decided to try to determine if Pagan-Colon had actually provided the assistant store manager with a doctor’s note. After its investigation, it concluded that Pagan-Colon lied when he said he provided a doctor’s note to the assistant store manager. It claimed that, among other things, it reviewed the store’s surveillance video and did not see Pagan-Colon give the note to the assistant store manager. There was one problem with this explanation – the video actually did show Pagan-Colon give the note to the assistant store manager. The video was so clear, in fact, that Walgreens reversed course and admitted at trial that the video showed Pagan-Colon giving the assistant store manager the note.

On January 27, 2011, the First Circuit Court of Appeals ruled that an employee may not take unpaid leave from work to care for a family member so that he can undergo religious healing rituals. A former employee of the Lahey Clinic, Marial Lucia Tayag, brought the case. The Lahey Clinic fired Mrs. Tayag because she took leave from work to care for her chronically ill husband while they went on a healing pilgrimage to a Catholic church in the Philippines. Mrs. Tayag’s husband suffers from serious medical conditions, including gout, chronic liver and heart disease, rheumatoid arthritis, and kidney problems that led to a transplant in 2000. While in the Philippines they prayed and met with priests and other pilgrims.

Mrs. Tayag argued that the Lahey Clinic violated her rights under the federal Family and Medical Leave Act (FMLA) because she was entitled to take leave to care for her husband while they were on their healing pilgrimage. The First Circuit (which is the federal appellate court for Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico) rejected Mrs. Tayag’s argument. It held that the FMLA did not protect Mrs. Tayag because her husband did not receive medical care from a “health care provider,” as that term is defined in the FMLA, during their healing pilgrimage. The court noted that federal regulations permit Christian Scientists to take FMLA leave for religious healing but did not extend that regulation to apply to Catholics.

The FMLA and the regulations that accompany it are sometimes difficult to navigate. If you are not sure whether your employer has violated your rights under the FMLA, you should contact an experienced employment lawyer to find out.

The Maine legislature recently failed to pass legislation that would have protected Maine workers who could not come to work because they were sick. Initially, the proponents of the legislation wanted to pass a law that would require employers to provide paid sick leave. When they could not garner enough support for that bill, they narrowed the legislation to only prohibit employers from terminating employees who cannot work because they or a family member are sick. Even that scaled back bill failed. As a result, many workers with contagious diseases, like swine flu, will be forced to come to work sick or lose their jobs.

You should know that an employer can terminate you for missing work because you are sick unless you fall under protections for employees with disabilities, workplace injuries, or serious health conditions. If you believe your employer has terminated you unfairly because you missed work due to your own health problems, or the health problems of a family member, you should contact an experienced employment lawyer.

In late October, President Obama signed into law new protections for families of military personnel who need to take leave from work under the Family and Medical Leave Act of 1993 (“FMLA”). The new protections expand on changes implemented less than a year ago which required certain employers to provide unpaid leave for qualifying family members of military personnel.

Under the FMLA, an employee may take leave because of a qualifying exigency that is a consequence of his spouse, son, daughter, or parent being called to active military duty. Such exigencies include the need to arrange for alternative childcare, to attend official military ceremonies, to make legal and financial arrangements, and to attend counseling. Prior to the new amendments, only employees whose family members were in the Reserves or the National Guard could qualify for this leave. Under the new FMLA amendments, employees whose family members are in the regular Armed Forces may take leave for these exigencies when the family member is deployed to a foreign country.

An employee may take leave to care for a servicemember with a serious injury or illness that he incurred while on active duty. Before the recent amendments to the FMLA, only family members of current members of the Armed Forces (including the National Guard and Reserves) could take this leave. The amendments have now expanded the FMLA to cover the family of veterans, so long as the veteran was a member of the Armed Forces at some point during the five year period before he began seeking treatment for his serious injury or illness. The amendments also expanded the definition of serious injury or illness to include conditions that predate a servicemember’s active duty if active duty aggravated the condition.