Articles Posted in Family and Medical Leave

On January 15, 2013, a federal court in Connecticut held that an employee who was fired for excessive absences based upon taking off several days to care for his wife following her hip replacement surgery and their son who was ill, suffered unlawful retaliation under the Family and Medical Leave Act (FMLA). Notably, the employee never asked for FMLA leave. However, the court in McNamara v. Trinity College held that where an employer is on notice of an employee’s request for time off, and such time could potentially qualify as FMLA leave, then the employer may not terminate the employee for taking such leave. Of course, if the employer is unaware of the reasons for taking time off, then it would be difficult for an employee to prove that he or she was fired for taking FMLA leave.

On January 14, 2013, the Wage and Hour Division of the U.S. Department of Labor issued guidance in the form of an Administrator Interpretation, which seeks to clarify the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”) as it pertains to a child 18 years old or older and is incapable of self-care.

The FMLA entitles eligible employees of covered employers to take unpaid leave for a medical or family reason. Among other things, the FMLA entitles an eligible employee to twelve weeks of leave in a 12-month period to care for the “serious health condition” of a son or daughter. In situations where the son or daughter is 18 years old or older, an employee is not permitted to take leave to care for such child unless the child is incapable of self-care because of a mental or physical disability at the time the FMLA leave begins.

In determining whether the condition qualifies as a mental or physical disability, employer considering leave requests must look to the Americans with Disability Act and related regulations issued by the Equal Employment Opportunity Commission, which provide a definition of such disabilities.

Today, the United States Department of Labor announced that the Wage and Hour Division has issued a Notice of Proposed Rulemaking to implement and interpret certain statutory amendments to the Family and Medical Leave Act (“FMLA”). Specifically, the regulations are intended to address the recent amendments to the FMLA, which expanded military family leave provisions, as well as incorporating a special eligibility provision for airline flight crew employees.

Today, the U.S. Department of Labor Wage and Hour Division released three new fact sheets addressing the topic of retaliation under the Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Each of these statutes contain provisions prohibiting an employer from retaliating against an employee for asserting rights covered by each of the statutes.

Fact Sheet #77A, Prohibiting Retaliation Under the FLSA, provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation and is available on the WHD website at

The New York City Council has proposed a law that would provide paid sick days to all private sector workers.
According to the Department of Justice Office of Domestic Social Development, as of February 2009, 76% of low wage workers and 48% of full-time private sector workers are not paid for sick days.

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Under the federal Family and Medical Leave Act of 1993 (“FMLA”), an eligible employer is entitled to take up to 12 weeks of unpaid leave per year in connection with, among other things, a “serious health condition.” Upon return from such leave, such employee is entitled to be restored to the same or equivalent position. Recently, the United States Court of Appeals for the Second Circuit (which embraces New York, Connecticut and Vermont) held in Roberts v. The Health Association that an employer does not violate the FMLA where it terminates an employee while on FMLA leave, where it is clear that the employee would not have been able to return to work upon the expiration of the 12 week leave.

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In Peters v. Gilead Securities Inc., the 7th Circuit sent out a warning to employers using employee handbooks, that their provisions may be held legally binding due to the contract liability theory of promissory estoppel. Specifically, the court ruled that although a company may not be subject to the Family Medical Leave Act they may still be liable if their Employee Handbook states employees are eligible for such a leave.

Gilead’s Employee Handbooks discussed a “Family and Medical Care Leave” policy that would be provided to all employees. This policy set forth that employees, who had worked for Gilead for at least 12 months and 1,250 hours in the last 12 months, were entitled to take up to a 12 week leave of absence to care for ill family members or themselves in which their position at the company would be secure. The provision in the handbook tracked the language that governed the eligibility of an employee to receive a similar leave under the Family Medical Leave Act (FMLA). However, the handbook in disclosing the eligibility for the leave did not include an exception referred to as the 50/75 provision that applied to FMLA leave. Under the FMLA 50/75 provision, employees who are employed at worksites where their employer employs less than 50 employees in a 75 mile radius are not eligible for FMLA leave. 29 U.S.C. § 2611 (B)(ii).

Peters involved an employee of Gilead who suffered a shoulder injury. On December 5, 2002, Peters took what he thought was FMLA leave in order to undergo corrective surgery. The day after he left for his leave he received a letter from his employer discussing both that the Family Medical Leave Act went into effect on August 5, 1993 and how an employee was eligible to take FMLA leave. This letter, like the employee handbook, mentioned nothing regarding a 50/75 exception. The letter informed Peter that if he returned to work before “[his] FMLA” leave was expired he would get back his position. The letter stated that he would have to return to work by February 28, 2003. Peter returned to work on December 16, 2002 but had to take another leave when his medical treatment changed. Again he received a letter from his employer calculating when he would have to return to work from his FMLA leave to keep his position- this time subtracting the time he already took off during his first leave. Peters was prepared to return to work before his 12 weeks expired but was informed that his position was given to another employee. Peters was offered another position but refused it and was ultimately terminated, this suit was brought in response to his termination.

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