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Flexible Work Schedule for All: Greater Challenge or Greater Profits?

Employers challenged with scheduling modifications due to reasonable accommodation requests under the ADA, intermittent leave requests under the FMLA, and paid sick leave requests in some jurisdictions, but looking to increase their profitability, might want to keep an eye on H.R. 4106, the Working Families Flexibility Act (WFFA). Introduced in the House of Representatives on … Continue reading Flexible Work Schedule for All: Greater Challenge or Greater Profits?
March 12, 2012

Last Word on Accommodation of Last Resort Yet To Be Spoken

When an employee cannot perform the essential functions of his or her position, with or without an accommodation, due to a disability, an employer must consider “the accommodation of last resort”—transfer to a vacant lateral or lower position for which the employee is qualified. The circuit courts have split on whether an individual with a … Continue reading Last Word on Accommodation of Last Resort Yet To Be Spoken
March 10, 2012

Employee With Migraines Not Disabled–There’s Hope for the “Coverage” Obsessors!

In 2011, an EEOC Commissioner noted that one aim of the ADAAA was to have the parties “stop obsessing about coverage”, i.e., about who is “disabled,” and move to the merits of the substantive claim. A Tenth Circuit decision suggests that there is still value in obsessing about ADA coverage. In Allen v. SouthCrest Hospital … Continue reading Employee With Migraines Not Disabled–There’s Hope for the “Coverage” Obsessors!
March 6, 2012

Who Cares? A Son Deciding Whether to Remove His Mother From Life Support Cares

Courts have struggled to determine who “cares for” a covered family member under the FMLA and who seeks leave for compassionate reasons which fall short of the “caring for requirement. See, e.g., Who Cares, Where? ; Who Cares? And Who Merely Assists Under the FMLA? The Sixth Circuit has held that an employee who sought … Continue reading Who Cares? A Son Deciding Whether to Remove His Mother From Life Support Cares
February 21, 2012

Terminated Employee Who Made Pre-Eligibility Request for Post-Eligibility Leave May Pursue FMLA Interference and Retaliation Claims; Court Rejects FMLA Loophole

 A terminated employee who had made a “pre-eligibility request” for a ”post-eligibility leave” can pursue FMLA interference and retaliation claims, according to the United States Court of Appeals for the Eleventh Circuit. The Court reversed the district court decision, which had dismissed both claims because the plaintiff was not FMLA-eligible at the time of her termination.   Pereda … Continue reading Terminated Employee Who Made Pre-Eligibility Request for Post-Eligibility Leave May Pursue FMLA Interference and Retaliation Claims; Court Rejects FMLA Loophole
January 24, 2012

FMLA Claim Must Be Arbitrated Due to Union Contract Waiver of Judicial Forum

An employee must arbitrate his FMLA claim where the labor contract governing his employment waived his right to pursue employment claims in court, according to the United States Court of Appeals for the Eighth Circuit. Thompson v. Air Transport Int’l LLC (12/28/11). The Court relied on the Supreme Court’s 2009 decision in 14 Penn Plaza … Continue reading FMLA Claim Must Be Arbitrated Due to Union Contract Waiver of Judicial Forum
January 22, 2012

“Severe Obesity” is a Disability Under the ADA, Federal District Court Rules

“Severe obesity” is a disability under the ADA and a plaintiff need not prove an underlying physiological basis for it, according to a Louisiana federal court. The court denied the employer’s motion for summary judgment. EEOC v. Resources for Human Dev., E.D. La., 12/7/11). Noting that there is no federal law prohibiting discrimination based on … Continue reading “Severe Obesity” is a Disability Under the ADA, Federal District Court Rules
January 16, 2012

Exacerbation, Causation and Retaliation under the FMLA

Whether a supervisor mistreated the plaintiff after he returned from his second leave of absence, causing him to need a third leave, is irrelevant to his FMLA retaliation claim because “[e]xacerbation is not a valid theory of liability under the FMLA” according to the Seventh Circuit.  Breneisen, Jr. and Lineweaver v. Motorola, Inc. (7th Cir. … Continue reading Exacerbation, Causation and Retaliation under the FMLA
November 9, 2011

Swine Flu Snafu: ADA Claim Dismissed, Even if Plaintiff Had Swine Flu

A plaintiff who thought she had the swine flu, and thought she had an ADA claim when she was terminated after four days of absence for the flu, had neither. Lewis v. Florida Default Law Group,P.L. (M.D. FL Sept. 15, 2011). The plaintiff was diagnosed with “seasonal flu” but “understood” she was diagnosed with the H1NI … Continue reading Swine Flu Snafu: ADA Claim Dismissed, Even if Plaintiff Had Swine Flu
September 21, 2011

Second Circuit Applies Title VII Retaliation Standard to FMLA Retaliation Claims

Add the Second Circuit to the chorus of circuits to apply the Supreme Court’s standard for Title VII retaliation claims to FMLA retaliation claims as well. In its 2006 Burlington Northern & Santa Fe Railroad Co v. White decision, the Supreme Court expanded the definition of “materially adverse employment action” for purposes of Title VII retaliation. … Continue reading Second Circuit Applies Title VII Retaliation Standard to FMLA Retaliation Claims
September 19, 2011

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