Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

The Department of Labor has been busy on all things FMLA.  This month, the DOL published its final regulations to clarify military family and care for a covered servicemember leaves.  For those working in the aviation industry, the new regulations also establish new rules for calculating leave amounts for flight attendants and flight crews. Although the regulations are long, this February 2013 Alert quickly summarizes the changes.

The Wage and Hour Division has also recently issued an administrative interpretation explaining what is meant by a disabled son or daughter over the age of 18.  This has created a lot of confusion over the years, as most people believed the regulations meant the exact opposite of what the Division is now saying.

According to the interpretation, a son or daughter who is older than 18 need not have been disabled before the age of 18.  This will mean that employers need to look twice at requests to take care of a 35 year old child with cancer, for example.

 In order to be a qualified disabled child, the person must satisfy four tests:

• Have a physical or mental disability
• Be incapable of "self care" in 3 or more "activities of daily living"
• Have a serious health condition as defined by the FMLA; and
• Need care because of the serious health condition.

FMLA interference claims seem to be on the rise, like other forms of discrimination claims.  When in doubt, we recommend checking with counsel to determine if an employee is eligible for leave.

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There’s an interesting new decision from the federal court in Pennsylvania which looks to the Americans with Disabilities Act (“ADA”) in seeking to interpret the Family and Medical Leave Act (“FMLA”).  

FMLA leave is designed to allow an employee to address family medical issues, and in this case the issue was whether the employee was entitled to such leave in order to find  new daycare for her autistic daughter who has significant developmental disorders and physical impairments. 

My distinguished colleague, Aaron Weems, addresses this new decision and its implications in an article in the Fox Rothschild Pennsylvania Family Law blog which can be found at:     

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A recent decision from the Northern District of Illinois greatly expands when an employer may have to grant Family and Medical Leave ("FMLA") for an employer to care for a spouse, parent or child with a serious health condition.  In short, going on vacation may now be grounds for protected FMLA leave.

In Ballard v. Chicago Park District, Ms. Ballard was the primary caregiver for her mother who was suffering from end stage congestive heart failure.  The Fairygodmother Foundation (akin to Make a Wish) granted Ms. Ballard's mother a six-day trip to Las Vegas.  Ms. Ballard asked for FMLA leave, and her employer, like I'm sure most of you would, denied her FMLA leave to go on vacation.  Ms. Ballard went on the trip anyway and was terminated for being on unauthorized leave.

Ms. Ballard sued for FMLA interference.  On a summary judgment motion, the Court held, in a departure from a long line of cases, that the trip qualified as care for a parent with a serious health condition even though there were no plans to seek medical attention on the trip. 

This is the season where I get a lot of calls from employers about questionable requests for FMLA leave.  Usually, it's the employee whose family lives out of the country and the employee requests several weeks off at Christmas to visit that family.  When that request is denied because there is no coverage, there is suddenly a note that a family member living in a foreign country conveniently needs care for the exact same period.  Although employers generally feel they are getting conned by the employees in this situation, there is not a lot that can be done short of a second opinion (good luck in a foreign country) if the proper FMLA certifications are completed.

This new decision may mean more of these holiday and vacation plans will be made to accompany a spouse, parent, or child on a trip.  It may seem unbelievable to an employer that a seriously ill person could be on say, the Orient Express, for three weeks, but the courts might be willing to buy it.  Employers should evaluate these requests carefully to avoid an FMLA interference claim.

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Employers take notice -- the US Department of Labor recently announced its "Bridge To Justice" program, in which it has allied itself with the American Bar Association to farm out Fair Labor Standards Act ("FLSA") (pdf) and Family Medical Leave Act ("FMLA") cases to private attorneys .  The goal, apparently, is to hook up employees -- current and former -- who have filed claims under either statute, with attorneys willing to take on such cases.     

This is sure to generate an enormous number of new cases, and the collaboration between the government and the private bar portends all sorts of new problems for employers.   Stay with us on this one.     

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On June 22, 2010, the U.S. Department of Labor’s Wage and Hour Division issued an Interpretation Letter (pdf) clarifying the definition of “son or daughter” under section 101(2) of the Family Medical Leave Act (FMLA). Under the interpretation, an employee who provides either day-to-day care or financial support to a child and intends to assume the responsibilities of a parent with regard to the child, may be entitled to FMLA leave to care for the child.

This new interpretation is heralded as a “victory” for nontraditional families, and for good reason. Although the analysis with respect to whether an employee stands in loco parentis (in the place of a parent) to a child, thereby qualifying for FMLA leave, will depend on the particular facts of every case, the new interpretation clearly expands the types of relationships that will qualify for FMLA leave. In fact, the DOL interpretation explains that employees who have no biological or legal relationship with a child may stand in loco parentis to the child and still be entitled to FMLA leave.

According to the DOL, the following relationships qualify for FMLA leave to care for a child with a serious health condition, and/or for birth of a child and to bond with a child within the first 12 months of birth or placement:

• An employee who provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship and to whom the employee provides no financial support);
• An employee/step-parent who provides day-to-day care for his or her wife/husband’s child (with whom there is no legal or biological relationship and to whom the employee provides no financial support); 
• An employee who will or does share equally in the raising of a child with the child’s biological parent;
• An employee who will or does share equally in raising an adopted child with a same sex partner but who does not have a legal relationship with the child;
• An employee who takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care; and
• An employee who assumes responsibilities for raising his or her niece or nephew after the death of the child’s parents.

If an employer is uncertain as to whether the employee’s relationship to a child is covered under the FMLA, the employer may require “a reasonable documentation or statement of the relationship.” But at all times employers must approach these issues with the understanding that they are fact sensitive matters that must be addressed on an individual basis.
 

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