Archive for the ‘Family Medical Leave Act’ Category

We have blogged in the past about the Family Medical Leave Act which allows you to take up to twelve weeks off, of unpaid leave, to address a family pregnancy, adoption, illness or death. Upon returning to work, your employer is required to make sure your job or one substantially the same is still available. One problem, though, is that the Federal law only covers employers with at least 50 employees. This can be problematic for many employees of smaller companies with no comparable state law protections, case in point, Claudia Rendon of Philadelphia.

Claudia Rendon, 41, of Philadelphia, said her employer, Aviation Institute of Maintenance, fired her after she took time off to donate a kidney to her son.

Rendon, who worked for a year and a half in the school’s admissions office, said she notified the school that she planned to take leave on July 19 to undergo kidney transplant surgery on July 21 at the Hospital of the University of Pennsylvania on behalf of her 22-year-old son, Alex, whose kidney failed last January. After extensive testing in early July, Rendon was found to be a match.

Kidney transplant surgery normally requires at least six to eight weeks of recovery time, and Rendon said the Aviation Institute agreed to give Rendon unpaid leave until Sept. 1. Rendon told ABCNews.com that on her last day of work before the surgery, her manager promised Rendon she would have her job upon her return, but one hour later, asked her to sign a letter acknowledging that her job was not secured.

“They said, ‘If you don’t sign this letter, you are abandoning your job and quitting,’” Rendon told ABCNews.com. “I said, ‘I am not abandoning my job. I am saving my son’s life.’”

The fact that the FMLA does not cover Ms. Rendon does not necessarily mean she is out of luck, there is also a possibility that she can bring claims under the Americans with Disabilities Act or relevant disability insurance policies.

If you find yourself wrongfully terminated, speak to an employment lawyer to learn your legal rights. Feel free to call Scott M. Behren and the Behren Law Firm for a free consultation.

In the interim, everyone should send hate mail to the wonderful people at Aviation Institute of Maintenance in Philadelphia.

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In Tayag v. Lahey Clinic Hospital, Inc., the U.S. Court of Appeals for the First Circuit found that an employee’s seven-week leave of absence to accompany her husband on a “spiritual healing trip” did not constitute medical care within the meaning of the Family and Medical Leave Act (FMLA).

In June 2006, employee requested a seven-week leave to assist her husband while he traveled to the Philippines on a “spiritual healing trip.” For this longer leave of absence, Lahey required Tayag to provide a note from her husband’s primary care physician detailing the need for Tayag to accompany him on the trip. Rather than submitting the requested documentation from her husband’s physician, however, Tayag produced a note from her own doctor, which stated that Tayag should receive time off to accompany her husband to the Philippines.

On August 8, 2006, after the Tayags had already left for their trip, Mr. Tayag’s cardiologist submitted a certification form to Lahey indicating that, in fact, Tayag did not need to accompany her husband on the trip. Lahey attempted to contact Tayag to inform her that her leave was not approved, but Tayag did not respond. On August 18, 2006, Lahey terminated Tayag’s employment.

While in the Philippines, Mr. Tayag did not receive any conventional medical treatment. Instead, the Tayags attended Mass, prayed, and spoke with a priest and other pilgrims at the Pilgrimage of Healing Ministry at St. Bartholomew’s Parish. Tayag and her husband also spent time visiting other churches, and seeing family and friends. Tayag claimed that she assisted her husband throughout the trip.

In August 2008, Tayag sued Lahey in District Court, alleging that Lahey terminated her employment in violation of the FMLA. The Court resolved the case in Lahey’s favor, finding that Tayag’s trip was not “protected” under the FMLA because it was effectively a vacation. Tayag appealed to the First Circuit, which reaffirmed that decision, finding that the FMLA does not protect the type of “healing” trip taken by the Tayags.

In deciding this issue, the First Circuit looked to the express language of the statute and found that the concept of “medical care” did not encompass such a trip. The Court then examined the law’s treatment of faith healing, which considers Christian Science practitioners to be healthcare providers to the extent that they are “others capable of providing healthcare services” within the meaning of the regulation. Although Tayag argued that the faith-healing exception is unconstitutional because it distinguishes between different religions, the First Circuit found her briefing on this issue to be so cursory that it considered the argument waived. Accordingly, the Court found that the faith-healing exception did not apply to Tayag’s claim and that the FMLA did not otherwise cover “healing pilgrimages.” Moreover, the First Circuit found that Tayag’s failure to provide adequate certification for her FMLA leave was independently sufficient to affirm the District Court’s decision to award summary judgment in the employer’s favor.

If you require legal assistance with your legal rights under the Family Medical Leave Act, feel free to contact Scott Behren and the Behren Law Firm for a free consultation.

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Many of you man know that if you your employer has at least 50 employees and you have been a full time employee of the employer for 12 months that you may be entitled to Family Medical Leave Act leave in the event of your serious health condition or that of one of your relatives. A new Federal Court opinion has indicated that an employee may not only take that FMLA leave, but should not be pestered about when they will return to work.

A U.S. District Court for the Western District of Arkansas opinion dismissed Howard Memorial Hospital’s motion for summary judgment and concluded that a jury should be presented with the Family and Medical Leave Act interference claim made by a hospital employee who said she felt pressured to return to work during her medical leave.

In the case, Regina Terwilliger, a former Howard Memorial Hospital housekeeper, claims that her supervisor contacted her on a weekly basis to ask when she would return to work after undergoing back surgery. One pivotal phone conversation revolved around Terwilliger’s work status, with the housekeeper asking if she was at risk of losing her job while she was at home recovering. During that conversation, Terwilliger’s supervisor responded to her questions by saying that she should return to work “as soon as possible.” Terwilliger decided to cut her medical leave short and returned to work a week early. A few weeks after returning to work, the hospital fired Terwilliger, alleging she stole from another hospital employee. Terwilliger says she was fired for taking FMLA leave and asserts that the hospital deprived her of the act’s full benefits by pressuring her to return to work early.

“Interference includes discouraging an employee from using FMLA leave,” the district court wrote.

If you have questions about your rights under the Family Medical Leave Act or FMLA, call Scott Behren and the Behren Law Firm.

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As some of you may know, the FMLA or Family Medical Leave Act is leave afforded by many employers to provide up to twelve weeks of leave time in the event that you or one of your family members has a health condition. FMLA leave is available to you if your employer has at least 50 full time employees and if you have worked for the employer at least 1250 hours in the last twelve months. Typically this leave is unpaid unless combined with some type of PTO from your employer.

The FMLA also allows an eligible employee to take up to 12 weeks of leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. The FMLA defines a “son or daughter” as a “biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

The U.S. Department of Labor (DOL) recently issued an Administrative Interpretation (AI) clarifying its opinion that employees are entitled to take Family and Medical Leave Act (FMLA) leave for birth, bonding or to care for the child of a domestic partner or same-sex domestic partner, as well as other children for whom an employee has responsibility for day-to-day care or financial responsibility, even though the employee has no biological or legal relationship with the child.

The AI explains that Congress intended the definition of “son or daughter” to reflect the reality that many children in the Unites States today do not live in traditional “nuclear” families with their biological father and mother. Congress further stated that the definition was intended to be construed to ensure that an employee who has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to the child. Accordingly, Congress included the term “in loco parentis,” which is defined as “in the place of the parent” within the definition of “son or daughter.” The key in determining whether someone is “in loco parentis” is the intention of the person to assume the status of parent toward a child.

The DOL stated that whether an employee stands “in loco parentis” to a child is a fact issue dependent on multiple factors including:

the age of the child;

the degree to which the child is dependent on the person claiming to be standing “in loco parentis”;

the amount of support, if any, provided; and

the extent to which duties commonly associated with parenthood are exercised.

Further, the FMLA regulations define “in loco parentis” as including those with day-to- day responsibilities to care for and financially support a child. The AI interprets this regulation to require either day-to-day responsibilities for care or responsibility for financial support, but states that an employee is not required to show both factors to be considered standing “in loco parentis” for a child.

Whether or not you are entitled to FMLA leave is a fact intensive question so if you are not sure you can try speaking to the U.S. Department of Labor or an employment law attorney. Make sure you receive the leave to which you are entitled.

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