Layoff Found to be Valid Position of Reemployment Under USERRA

The Eighth Circuit Court of Appeals recently held that a layoff as a part of a workforce reduction is a valid "position of reemployment" for purposes of the Uniformed Services Employment and Reemployment Rights Act (USERRA).  More ›

Employer did not Discriminate or Retaliate Against Disabled Employee who was Unable to Perform In-Person Supervision Tasks

A supervisor of released adult offenders suffered from sacroiliac joint dysfunction, a condition causing pain in the joints that limited her ability to walk and forced her to work from home. After surgery, she made a full return to work, but roughly a year and a half later she fell down stairs at work and the symptoms of her condition returned. She had a second surgery and took leave under the Family and Medical Leave Act (FMLA) to recover. She was terminated after her FMLA leave expired. More ›

Employee Permitted to Combine two Separate Health Issues into one “Serious Medical Condition” Under FMLA

A federal district court in Minnesota has ruled that multiple medical conditions can be combined into a single "serious medical condition" for purposes of the FMLA as long as the two conditions are "temporarily linked" and affect "the same organ system." More ›

Ninth Circuit Finds “Attendance” to be Essential Function of Nurse’s Job

The Ninth Circuit recently determined that for a neo-natal intensive care unit nurse, attendance is an essential function of the job. The hospital at which the nurse worked had an attendance policy wherein employees could take up to five unplanned absences during a rolling twelve-month period, and unplanned absences related to family medical leave . . . jury duty, bereavement leave and other approved bases are not counted towards this limit, and each absence, however long, counts as only one occurrence. More ›

Policy Requiring Disclosure of Nature of Illness for Work Absences may Violate ADA

The Equal Employment Opportunity Commission filed a class-action lawsuit against a department store claiming its policy violated the Americans with Disabilities Act (“ADA”). The case came about when an employee was unable to attend work for a few days due to medical illness, and despite having provided a doctor’s note for her absence, the store sought the specific nature of her illness in order to have the absences deemed “excused.” The employee refused to provide the information and claimed the request was unlawful. The store subsequently terminated her employment. Later, the store revised its policies and this requirement was removed.  More ›

Department of Labor Announces Proposed Rules Expanding FMLA Leave

Today, the Department of Labor announced that it is issuing a notice of proposed rule-making to implement new statutory amendments to the Family and Medical Leave Act. The provisions specifically address military caregiver leave and airline flight crew employee leave. More ›

Court Imposes Liquidated Damages Against Employer for FMLA Interference

Calculating Family and Medical Leave Act (FMLA) leave can be a daunting task. The law provides employers with various options for determining how the 12 weeks plays out, and also sets forth various notice responsibilities, both for the employee and the employer. This proved to be a problem for one employer, however, who, while providing its employee with FMLA leave, failed to properly notify him of how it was calculating his leave, which ultimately cost the employer big. More ›

"11th Hour Change of Heart" Forms the Basis for FMLA Claim

As a result of the economic downturn, an employer sought to lay off various staff. A supervisor indicated that it would be “an obvious choice” to eliminate an employee in the communications department because the employee’s duties had changed significantly and the employer had stopped work on one of his core campaigns. After the employee was selected for layoff, a communications director notified the employer of his need for time off for knee replacement surgery. The employer then made a last-minute decision to lay off the communications director in lieu of the previously selected employee. The communications director sued, claiming that the employer had violated the Family and Medical Leave Act (FMLA). The U.S. Court of Appeals for the Seventh Circuit found that the record contained sufficient evidence to create triable issues where: (1) the employer had originally identified a co-worker for termination, but then selected the communications director shortly after he announced intention to take FMLA leave; (2) management backdated a memo to make it appear that the termination decision was not influenced by the leave request; and (3) the employer gave an inconsistent explanation regarding the termination. When an employer decides to terminate an employee not originally slated for layoff, it should make sure that the employment action is accurately and timely documented and that the employer’s thought process is consistent, precise and well-reasoned.

Shaffer v. American Medical Association, No. 10-2117 (7th Cir. Oct. 18, 2011)

EEOC Holds Public Hearing on Leave as a Reasonable Accommodation

On June 8, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) considered the use of leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) by assembling a diverse panel of experts to voice their opinions. Under the ADA, an employer must provide a disabled employee with reasonable accommodations that will allow him or her to perform the essential functions of the job. However, an employer does not need to provide accommodations that subject it to an undue hardship. When disabled employees request a leave of absence as a reasonable accommodation, employers are faced with the question of how much leave they must provide in order to comply with the ADA. That question often arises when a disabled employee exhausts all available leave time and is still not able to return to work. At the June 8 hearing, representatives for employers expressed their view that attendance itself can be an “essential function of the job” and that unplanned or extended absences are difficult for employers to manage. Employee representatives responded that leave is a critical accommodation that allows many disabled employees to stay in the workforce, and that the “entire purpose of the leave is vitiated if the employee recovers but is terminated or otherwise barred from returning to work.” The EEOC’s dominant message was that employers need to be flexible when applying their leave policies to disabled employees and that employers which enforce a bright line rule requiring a disabled employee to return to work or be terminated when his/her available leave is exhausted could be exposing themselves to liability under the ADA. Employers should instead analyze whether extended leave is a reasonable accommodation in the same way that they would analyze any other request for accommodation — by performing a individualized analysis to determine whether the accommodation is required by the ADA (i.e., whether the extended leave will allow the employee to perform the essential functions of the job without subjecting the employer to an undue hardship). The EEOC plans to issue updated guidance on when extended leave is warranted under the ADA, potentially by the end of this summer.