Family Medical Leave Act (FMLA)

Happy 2014! Can you believe it is another new year? Time flies!employee termination

We will be finishing up our Employment Law IQ series in the next few weeks. Today’s question involves the sticky overlap of the ADA and FMLA, two laws that can be difficult even for seasoned HR professionals to navigate.

Scenario. Lucy Lawless works as an associate attorney at Dewey, Sue & Howe, the biggest law firm in Southwest Florida. Lawless, a lifetime smoker, was recently diagnosed with lung cancer. Dewey, Sue & Howe, which calculates FMLA leave on a calendar basis, grants Lawless 12 weeks of leave under the FMLA. Lawless is unable to return to work after 12 weeks, so Dewey, Sue & Howe grants Lawless an additional six months leave. At the end of six months, Dewey, Sue & Howe granted Lawless an additional period of leave, up to the anniversary date of her first request for leave. On the anniversary date, Lawless requests additional leave, but does not provide Dewey, Sue & Howe with any doctor’s note or certification to verify her request. Dewey, Sue & Howe terminates her.

Which of the following statements is correct?

A.  Dewey, Sue & Howe violated the ADA by failing to grant Lawless additional leave.

B.  Dewey, Sue & Howe violated the FMLA by failing to grant Lawless additional leave.

C.  Dewey, Sue & Howe violated both the ADA and FMLA by failing to grant Lawless additional leave.

D.  None of the above.


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10798579815_c28c898769_qIn honor of Veterans Day, let’s test your Employment Law IQ with regard to Active Duty Military Leave.

Scenario:  Linda Longlegs is employed as a dance instructor by Footloose Studios, a small dance company in Southwest Florida. Longlegs, who is in the Army reserve, tells her supervisor she needs six months of leave because she has been called to active duty in Afghanistan.

Which of the following statements is correct?

A.  When Longlegs returns, Footloose does not have to re-employ her because Footloose only has 9 employees.
B.  When Longlegs returns, Footloose does not have to re-employ her because Longlegs only worked for Footloose for two months prior to her request for leave.
C.  Longlegs can use her accrued PTO while she is on leave.
D.  While Longlegs is on leave, Footloose must pay her regular wages and continue to pay her health insurance coverage.


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In an Administrative Interpretation issued yesterday, the Department of Labor clarified the definition of “son and daughter” as it applies to an employee standing “in loco parentis” to a child under the Family and Medical Act for purposes of non-military leave.  The Interpretation was intended to ensure an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.  With the Interpretation, the DOL made clear the FMLA, which allows employees to take leave for the birth or adoption of a child, extends to the various parenting relationships that exist in today’s world.

The definition of “son or daughter” includes a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”  In loco parentis includes those with day-to-day responsibilities to care for and financially support a child.  Employees who have no legal or biological relationship with a child may nonetheless stand in loco parentis, and thus be entitled to FMLA leave.

The Interpretation clarifies that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support.  The Interpretation lists several examples, including an employee who provides day-to-day care but does not financially support his or her unmarried partner’s child with whom there is no legal or biological relationship.  It also lists, as an example, an employee who will share equally in the raising of an adopted child with a same-sex partner, but who does not have a legal relationship with the child.


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The Employment Law Practice Group is pleased to provide the February 2010 edition of the Employment Law Update, which features the following articles:

  • Did you know that Florida ranks second only to California in the number of wage and hour suits brought against employers?  Robert Shearman provides employers with a timely update and advice