San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

The Family Medical Leave Act provides that an employee can take time off from work to care for a family member.  But, "caring" for a family member means the employee must be in close and continuing proximity to the family member.  So, the Fifth Circuit denied an appeal by a father who argued that frequent telephone calls to his daughter and wife regarding his daughter sufficed as "caring" for the daughter.  

The father was in Texas, while his wife was in Florida caring for their ill daughter.  The father had argued on appeal that frequent telephone contact over two weeks with his daughter satisfied the requirements of the FMLA.  Telephone contact, said te Fifth Circuit, does not satisfiy the proximity requirement.  See Baham v. McClane Foodservice, Inc., 011 US App. Lexis 13620 (5th Cir. 2011). 

Not that telephone "caring' does not have some value, but really? 

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Russ Cawyer posts about the coming demise of the so-called "no fault" leave policy, better described as fixed leave policies.  He notes that the EEOC has been aggressively pursuing companies who implement such policies.  Under these policies, once an employee has been out on leave for a certain length of time, the employee is terminated no matter the cause of the leave.  The problem with such policies is that they violate the requirement of the Americans with Disabilities Act for an individualized assessment of an employee's need for leave.  I discussed these automatic leave policies previously here.  An employer maintains such policies at considerable risk.  They might work for Family Medical Leave Act or worker's compensation reprisal cases, but they will not work for ADA claims.  

The EEOC held hearings on leave as an accommodation, a couple of weeks ago.  Public comments regarding leave as an accommodation may be sent to:  Commissionmeetingcomments@eeoc.gov.  I typically only hear about the issue when some employee faces an issue with his/her employer.  But, sure, many employees are getting short shrift from too many employers when the employee is out on prottracted leave.  There is strong caselaw saying that too many absences render an employee unable to perform a key function of every job: attendance.  This is a misleading characterization, but the point remains, employees need to attend work in some way to perform the job.  

There is a middle ground, somewhere before the employee is out for a year or two but not before the employee has had an opportunity to recover from an ADA type illness.  The EEOC will attempt to find that middle ground when they issue new regulations regarding leave as an accommodation. 

Most cases currently find that absences of 1 year, 1,5 years are too long.  Once an employee has been out that long, many judges have found that he/she is not capable of performing a key function of every job, attendance.  If the employee cannot perform the function of attendance, then that employee is not entitled to accommodation.  But, how long is too long for an employee to be out?  Send your comments to: Commissionmeetingcomments@eeoc.gov.  The EEOC is working on regulations to provide needed guidance.  Government regs always work better when they have some grounding in real life. 

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 A Detroit law firm requires secretaries to wear heels.  Until just a few years ago, they used teacups and saucers for coffee.  This is a traditional law firm.  One woman injured herself wearing heels.  Her heel caught on the carpet.  She hurt her back.  She had to take medical four times as part of her treatement. So, her employer, Honigman, Schwatrz, and Cohn refused to let her come back to work after her fourth medical leave.  See ABA Journal report.  They fired her. 

Denise Fitzhenry injured her back.  Now, she has sued for violations of the Americans with Disabilities act and the Family Medical Leave Act.  99% of the secretaries at Honigman are female.  She also alleges a hostile and degrading work environment for secretaries.  Her lawyer, Deborah Gordon, describes the law firm as very traditional.  They are like the "Mad Men," the television show, the lawyer explains.  Yes, I am sure.....

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 Its a sign of the times.  Employee is out sick and the employer calls to pressure the employee to return to work asap.  See story.  A woman was recovering at home from a double mastectomy.  The manager at the crafts store, Michaels, called her several times asking when she could come back to work.  Kara Jorud was torn between fears for her job and the need to recover.  Eventually she went back to work much sooner than the the three months to which she would have been entitled under the Family Medical Leave Act.  

She could barely lift her arms across her chest when she returned to work.  She asked her husband to come in one day to help her lift boxes.  She was then fired for this breach of company policy.  

Fortunately, even in bad times, the nation's discrimination laws still apply.  So, folks like Mrs. Jorud at least have a choice.  

Ms. Jorud was one of the lucky few.  She won her lawsuit and was awarded $8.1 million.  As I tell my clients, yes, it is unpleasant when the boss calls you and pressures you.  But, that sort of pressure can become very good evidence later.  The court found that the employer's actions violated the Family Medical Leave Act. 

In a 2001 poll by the Department of Labor, almost one-third of workers said they did not take leave even when they felt they needed it because they feared they would lose their jobs. In the MSNBC poll accompanying the story, 62% of respondents said they felt pressure to not take time off for medical needs in this difficult economy.  

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Paid maternity leave is virtually nonexistent in the US.  Even unpaid leave is not a given.  Since, the Family Medical Leave Act only applies to employers with 50 or more employees.  A worker must have worked for the employer some 12 months prior to requesting the FMLA leave.  According to one public agency, the FMLA covers 60% of the workforce.

One mother, Anna, describes her two births.  See post.  She was an independent contractor both times. So, the only leave she received was what she could squeeze in between births.  Every Western country, except Australia and the US, offer paid maternity leave according to Anna.  So much for family values.....

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 We can count on Oprah for many things.  One is a recent explanation of the rights for new mothers under the Family Medical Leave Act.  Thanks, Oprah.  

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 This is why employees need lawyers and why employers get sued.  A fellow blogger, Evil HR Lady, reports that some hospital has told its medical staff they must stay away from work when they are ill with the H1N1 flu and such illnesses will count as Unexcused Absences.  Such time will count as an "occurrence."  As HR lady points out, unexcused absences will presumably be used for discipline.  I do not think you can ask for a more clear example of a violation of the Family Medical Leave Act or, possibly, the Americans with Disabilities Act.  You make them stay home and then penalize them for staying home.  Any discipline for a genuine illness very likely violates the FMLA or the ADA.  That is a shame. 

To her credit, HR Lady points out the need for HR personnel to demonstrate leadership on such issues.  If more HR ladies and gentlemen did so, there would be much less need for lawyers like myself.  A tip of the hat to Not So Evil HR Lady for taking the high road.....

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