Posted by marykeating on July 5, 2011 under Employment benefit issues, FMLA, Family responsibility, Sex-based discrimination | 
A Maryland state employee filed suit after his termination from the court system. He claimed that he was the victim of race discrimination, and also that his termination violated the Family and Medical Leave Act. The lower courts rejected both contentions, but the Supreme Court has agreed to hear the issue involving his FMLA claim. This blog discussed the case earlier.
That part of the decision related to the immunity of states from private lawsuits in federal courts. Under the 11th Amendment to the Constitution, states cannot be sued in federal courts unless the state has consented to the suit, or Congress has specifically, and legally, removed the immunity.
The Supreme Court earlier decided that Congress removed the immunity for FMLA suits against states when the employee was using FMLA protection to care for another person. The FMLA protected workers in that situation because of ingrained sex discrimination, “the pervasive sex-role stereotype that caring for family members is women’s work.”
The FMLA offers protection to workers taking time off for their own illness or disability also; but according to the Fourth Circuit, the motivation for the law did not implicate any constitutional protections. Instead, Congress found that the economic effect of job loss due to illness was profound, and sought a way to limit it when larger employers were involved. Because there was no constitutional imperative underlying the law, Congress could not validly permit the states to be sued.
The petition for certiorari pointed out cases in which the circuit courts believe that the law has to stand or fall as a unit, therefore all of its parts must be viewed together. Others specifically requested the high court’s guidance.
The Supreme Court does not announce why it agreed to hear a case; it becomes clearer (sometimes) after the decision comes out. The Rehnquist Court upheld states’ rights to be free of federal legislation, but this newer Court may go in a different direction.
Posted by marykeating on July 6, 2010 under Family responsibility |
The Department of Labor enforces the Family and Medical Leave Act. In late June, the Department published an interpretation that clarifies its view on when an employee with FMLA rights may take leave to care for a child. An eligible employee may use FMLA time to care for an ill child if the employee has day-to-day responsibilities for the child and/or financially supports the child. That is, the law’s protections covers family members other than biological, adoptive or foster parents, including step-parents, other extended family members, and unmarried or same sex partners.
The law itself defines son or daughter to include “a child of a parson standing in loco parentis.” The Department makes the point that financial support is not necessary to prove if the employee seeking leave in fact has day-to-day responsibilities (at least part of the time) for the child. “Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.” Therefore, a child whose parents have remarried may have four people who qualify as parent; if a grandparent or other relative lives in one of the houses the number may climb. An employer is entitled to ask whether the employee seeking leave qualifies; but a “simple statement asserting that the requisite family relationship exists” is enough. There will seldom be detailed documentation to show the relationship. Because FMLA is not paid leave, although the employer is entitled to require an employee to use any available vacation or personal time during the FMLA leave, abuse of the privilege is unlikely.
Posted by marykeating on September 25, 2009 under disability discrimination |
Maybe we are all fatigued. Not from the swine flu, I hope, but from the endless overplayed news stories. It’s only September, though, and smart people are genuinely worried that this illness could infect a large swath of the population. (I’m somewhat comforted by one story that theorized that people who lived in the 1950s were probably exposed then to this very strain, and will be fine. Good, my kids will need me when they’re sick.) Other than taking precautions like stocking antibacterial supplies, what can employers do? The EEOC has just published a helpful list of ADA-Compliant suggestions, together with problem areas to avoid.
- Telecommuting. Some employers may want to expand or revisit the telecommuting option. Allowing more people to telecommute can slow the spread of the virus, as well as permit workers who need to stay near sick relatives to get some work done. Employers need to guard against imposing or denying telecommuting in a discriminatory way however. In addition, telecommuting may qualify as a reasonable accommodation under the Americans with Disabilities Act.
- Sanitary practices. Employers may also impose requirements, such as handwashing, use of masks, use of special tissue disposal containers, to impede the spread of contagious diseases. If any requirement would implicate a disability, however, the employer needs to take reasonable steps to accommodate the employee.
- Medical Tests and Questions. This area is frequently a touchy one for employers. They know generally that there are rules against asking about disabilities, rather than an employee’s ability to perform the essential functions of the job. But does that include the flu? Even in a pandemic? The EEOC guidance is interesting here, reminding employers that they can ask how an employee would be affected if schools were closed (contrasted with asking if they or family members are sick). And an employer may test a new hire, after the offer is made, if all new hires in the same situation are tested.
- Disabled Employees Vulnerable to Swine Flu. The swine flu is a temporary condition, and therefore not the sort of ailment that the ADA is designed to protect. It must be remembered, though, that certain chronic conditions may exacerbate the danger posed by swine flu, such as respiratory conditions, asthma and the like. The employer needs to be sensitive to a disabled employee needing an accommodation because his (or a family member’s) disabling condition makes the swine flu more serious.
- Family and Medical Leave Rights. The Fourth Circuit has already held that the flu is a serious illness subject to FMLA protections. For an employee with more than a year’s service with an employer of 50 or more employees, taking time to care for oneself or a family member with swine flue is protected activity under the FMLA, if all other requirements are met.
