Articles Posted in FMLA

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On September 24, 2004, in Tambash v. St. Bonaventure, a New York District Court held that an employer is on notice that leave under the Family and Medical Leave Act (“FMLA”) may be needed where the employer is aware of its employees’ mental health condition.  While this case is not new, it is worth looking back at.  Tambash ensures that employers who know of their employees need for leave are not off the hook.

In Tambash, Plaintiff Terrence N. Tambash accepted a position by St. Bonaventure University (the “University”) as a security personnel and rose to Director of Security Services.  Ten years later, Mr. Tambash began to experience depression and anxiety.  Due to the significant decline of his mental health, Mr. Tambash requested a one-month vacation to deal with his stress and depression and notified his supervisor that he would need to take a medical leave for mental health reasons after returning from vacation.  Mr. Tambash was an FMLA-eligible employee.  Unfortunately, while on vacation, Mr. Tambash received a letter stating that the University had terminated his employment due to unsatisfactory work performance, neglecting his duties, and incompetence.  Mr. Tambash sued, alleging that the University had interfered with his right to take leave under the FMLA.

On summary judgment, the University argued that Mr. Tambash’s FMLA claim must be dismissed on the grounds that Mr. Tambash failed to provide adequate notice of his need for FMLA leave.  Before Mr. Tambash left for vacation, Mr. Tambash only told Mr. Solan that, “I probably need extended time after the vacation to deal with the problems.”  On another day, Mr. Tambash informed Mr. Solan that he could no longer work due to his mental anguish and told three St. Bonaventure employees that he would resign.  Later that day, however, Mr. Tambash called back to state that he wanted to take sick leave.  At no point did Mr. Tambash specifically ask for FMLA leave.  The supervisor, however, was aware that Mr. Tambash was being treated for anxiety and depression and that Mr. Tambash took time off work before his vacation due to emotional distress.

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Edgar M. Rivera, Esq.

On February 26, 2018, in Smith v. North Shore-Long Island Jewish Health System, the U.S. District Court for the Southern District of New York denied a motion for summary judgment submitted by North Shore–Long Island Jewish Health System (the “Hospital”) to dismiss claims under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and New York City Human Rights Law (NYCHRL) brought by Nola Smith, a former registered nurse with the Hospital, finding triable issues based largely on evidence that the hospital strayed from following its established policy.

Throughout Ms. Smith’s tenure with the Hospital, she suffered from anxiety disorders and panic attacks. The Hospital accommodated her with a lighter work schedule than other nurses, and she took intermittent leaves of absence under the FMLA.  The Hospital, however, issued Ms. Smith multiple warnings for her use of leave, even though some of the leave was under the FMLA and therefore protected. (The Hospital generated a spreadsheet of nurses who called in sick more than three times per quarter, regardless of whether the absences were covered by approved leave under the FMLA.)  The Hospital also allegedly denied Ms. Smith’s transfer requests and did not allow her to attend career-enhancing conferences because of the number of her leaves of absence. At one point, the Hospital did allow Ms. Smith to attend a conference, but she could not find anyone to cover her shift and ended up missing the conference.  The Hospital, however, paid Ms. Smith for the conference attendance, which payment Ms. Smith assumed represented accrued paid time off.  The Hospital later discovered that Ms. Smith had not attended the conference and fired her for accepting pay for a conference she failed to attend.

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This summer, New York State finalized the regulations for New York’s new Paid Family Leave Benefits Law (PFL), which goes into effect on January 1, 2018. The PFL will expand New York’s existing Disability Benefits Law to provide paid leave for nearly all private employees in New York State to cover time spent caring for a new child, caring for a family member with a serious health condition, or assisting loved ones while a family member is deployed abroad on active military duty, with the guarantee that an employee who takes leave will be able to return to their job and continue their health insurance.

While polls indicate that Americans largely support paid family leave policies, no federal statute entitles employees to paid family leave, and only five states other than New York—California, New Jersey, Rhode Island, Washington, and Washington, D.C.—have state-level paid family leave laws. According to last year’s National Compensation Survey, an annual survey conducted by the U.S. Bureau of Labor Statistics, only 14% of civilian workers in the U.S. had access to any paid family leave whatsoever. And of those, higher-wage white-collar workers are much more likely to have access to paid family leave; 37% of those employed in the finance and insurance sectors have paid family leave benefits, in comparison to 5% and 6% of workers in the construction and hospitality industries, respectively.

The federal Family and Medical Leave Act (FMLA), which allows employees to take up to 12 weeks of leave to care for a new child or for a family member with a serious health condition, provides access to family leave for many U.S. workers. But FMLA leave is unpaid, is not available for employees of smaller businesses, and is only available to employees who meet certain requirements. A significant percentage of U.S. employees therefore aren’t covered by the FMLA, and even those who are covered often aren’t able to afford the hit to their income an extended period of unpaid leave would cause.

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Owen H. Laird, Esq.

We recently wrote about two labor and employment law cases that will be heard by the United States Supreme Court in its current session: Janus v. American Federation of State, County and Municipal Employees and Encino Motorcars, LLC, v. Hector Navarro, et al. These cases, however, were not the only labor and employment law cases submitted to the Court for certiorari. The Supreme Court only takes a small fraction of the cases that are submitted to it each year, and, this year, the Court elected not to weigh in on several significant employment law cases. Because the Court decided not to hear the appeals, the decisions of the circuit courts in those cases will stand.  Two cases in particular, Stevens v. Rite-Aid Corp. and Bartels v. 402 East Broughton Street Inc., could have a significant impact on employees.

In Stevens v. Rite-Aid Corp., the Second Circuit addressed the question of what constitutes an essential job function for the purposes of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination in employment against a “qualified individual” on the basis of their disability. A “qualified individual” is defined as someone who, with or without reasonable accommodations, can perform the “essential functions” of their job. In short, employers may not discriminate against employees with disabilities that do not prevent job performance, but when an employee cannot perform the essential functions of the job, even with an accommodation, the employer can terminate the employee.

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Owen H. Laird

Earlier this month marked the twenty-fourth anniversary of the passage into law of the Family and Medical Leave Act (“FMLA”). This groundbreaking piece of legislation has, over the last nearly quarter-century, been among the only federal protections for employees who need to take medical leave to care for themselves or for a family member.

In short, the FMLA allows certain employees, under certain circumstances, to take up to 12 weeks of leave in order to seek treatment for their own serious medical condition or to care for a family member. Without the FMLA, most employees would have no protection in the event of an emergency and would be forced to rely on the goodwill of their employer or—if they had one—a short-term disability policy. The FMLA was trailblazing legislation at the time of its passage and has helped millions of Americans in need from the early years of the Clinton administration through today. However, much still needs to be done to protect people in the workplace who need to take time off because of a medical issue.

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On August 10, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated the lower court’s dismissal of the plaintiff’s sex discrimination and FMLA interference claims in Shultz v. Congregation Shearith Israel of the City of New York. The Second Circuit found that the defendant’s notice to the plaintiff of her future termination constituted an adverse employment action, even though the notice of termination was later revoked.

Alana Shultz began working as Program Director at a New York City synagogue in 2004. In June 2015, Shultz, who was pregnant at the time, got married and notified her employer that she was pregnant. Shortly after Shultz disclosed her pregnancy, the synagogue notified Shultz that her employment would be terminated effective August 14, 2015, purportedly due to “restructuring.” Suspecting that the supposed “restructuring” was pretext for terminating her because of her pregnancy and because the synagogue’s leadership “disapproved of the fact that she was pregnant at the time of her marriage,” Shultz retained counsel, who then notified the synagogue of Shultz’s intent to pursue legal claims. Several days later, the synagogue rescinded its notice of termination, telling Shultz that it had “reinstated” the Program Director position and that she would therefore retain her position.

However, according to Shultz, she continued to experience discrimination and harassment after the termination was revoked: Her supervisors allegedly remarked that the synagogue “had a right to disapprove of [her] pre-marital pregnancy,” removed Shultz’s name from the congregation’s newsletters and lists of employees, refused to speak with her, and instructed her to transition her job responsibilities to other employees. Shultz brought suit in the U.S. District Court for the Southern District of New York, alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and New York state and city laws, as well as interference under the Family and Medical Leave Act (“FMLA”). The synagogue successfully moved to dismiss all of Shultz’s claims. Shultz subsequently appealed to the Second Circuit, which declined to exercise jurisdiction over Shultz’s state and city claims, but vacated and remanded the district court’s decision on Shultz’s Title VII and FMLA claims.

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On July 19, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated a jury verdict for the defendant in Woods v. START Treatment & Recovery Centers, Inc. In Woods, the plaintiff claimed that she had been terminated in retaliation for taking leave under the Family and Medical Leave Act (FMLA). The court held that FMLA retaliation claims should be evaluated using the “motivating factor” causation standard and found that the jury had been incorrectly instructed on the applicable law, as the Woods jury had been instructed to apply the “but-for” causation standard, not the motivating factor standard. Accordingly, the Second Circuit vacated the lower court’s verdict and remanded the case for a new trial.

In 2007, Cassandra Woods began working as a substance abuse counselor at START, a New York–based nonprofit providing treatment and counselling to individuals addicted to narcotics. Woods has several debilitating medical conditions, including severe anemia. According to Woods, she repeatedly asked to take FMLA leave due to these medical conditions during her employment at START, but was denied on multiple occasions. In April 2012, Woods was hospitalized for a week, a period which START acknowledged was protected by the FMLA. Shortly after Woods’s return to work, START terminated her employment, purportedly because of performance deficiencies.

Woods brought suit in the U.S. District Court for the Eastern District of New York, alleging that START had fired her in retaliation for requesting and taking FMLA leave. At trial, the district court asked the jury to apply the “but-for” causation standard, giving the following jury instruction: “For you to determine that the plaintiff was terminated for taking FMLA leave, she must prove that the defendant would not have terminated her if she had not taken FMLA leave, but everything else had been the same.” The jury found in START’s favor, deciding that Woods had not shown that her employer had retaliated against her for exercising her rights under the FMLA. Woods then appealed to the Second Circuit, who vacated and remanded the decision.

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By Edgar M. Rivera, Esq.

On May 15, 2017, the District Court for the Northern District of Illinois denied the Township High School District 214’s motion to dismiss in Valdivia v. Township High School District 214, where Noemi Valdivia, a Hispanic high school secretary, claimed that co-workers’ derogatory comments about Hispanic students and their families forced her to resign.  She brings a hostile work environment claim based on race under Title VII of the Civil Rights Act of 1964 (Title VII) and an interference claim for defendant’s failure to inform her that she was eligible for 12 weeks of leave under the Family and Medical Leave Act (FMLA).

Ms. Valdivia began working at District 214’s Elk Grove High School in 2010. Although she claims that her coworkers had always made derogatory remarks about Hispanic students and their families, in September 2014, these remarks became more frequent. For example, one of her peers allegedly said that Hispanic people “came to America” and “want everything for free even though they have new cell phones and their nails done.” Another told Ms. Valdivia not to speak Spanish at work because they were in “America.” Ms. Valdivia claims that she complained to both the school principal and the assistant principal, but both told her there was nothing they could do since “the secretaries’ union was too strong.”

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Currently, there is no U.S. federal statute requiring employers to provide their employees paid family or medical leave. This year, with less than two weeks until the 2016 election, both candidates have set forth plans for paid family leave for the first time in a U.S. presidential election. Paid family leave is an issue which affects millions of voters, but has received comparatively little attention in the media and, until now, hasn’t been supported by a Republican presidential candidate.

The Family and Medical Leave Act of 1993 (FMLA) is a federal statute which entitles eligible employees to take 12 weeks of unpaid, job-protected leave within a 12-month period due to the employee’s own serious health condition, to care for a family member with a serious health condition, or to care for a new child. According to the Department of Labor, the FMLA is “designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons.”

However, the FMLA comes with conditions. In order to be eligible for FMLA leave, an employee must work for a private-sector employer with 50 or more employees, a public agency, or a public or private elementary or secondary school, meaning that many employees of small businesses aren’t covered by the FMLA. In addition, even employees of covered employers are only eligible for FMLA leave if they have worked for the employer for at least 12 months—including at least 1,250 hours during the 12-month period immediately before the leave. Complicating the situation yet further, many employees, especially low-wage workers, can’t always afford to take unpaid leave. And even those employees who do take FMLA leave often report difficulties making ends meet during their time away from work.

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Yarelyn Mena

In David Brady v. Bath Iron Works Corporation, Bath Iron Works Corporation (“Bath Iron Works”) terminated David Brady, a long time employee, for drinking a beer with a co-worker while on FMLA leave. Mr. Brady alleged that Bath Iron Work’s termination of his employment violated the Family Medical Leave Act (“FMLA”).

In 2014, Mr. Brady began to suffer from mental health issues, including depression and anxiety, and took intermittent FMLA leave. On June 23, 2015, Mr. Brady again took intermittent FMLA to undergo treatment related to his mental health issues.

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