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Employee With Work Injury Who Was Fired For Excessive Absenteeism Was Not Prejudiced By Employer’s Failure To Designate Absence Under FMLA

The court reviewed the amended FMLA regulations dealing with prejudice for failing to designate FMLA time promptly.

Deborah Myers worked as a dialysis nurse at Kettering Medical Center in Ohio (KMC). She was injured during the course of her employment on August 15, 2009. She received temporary total disability benefits under Ohio’s workers’ compensation system. Her injury qualified as a serious health condition under the FMLA but her employer failed to promptly notify her that her absence was designated as FMLA leave.

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Employer Was Correct In Reading FMLA Request Narrowly to Exclude Foot Condition Since the Only Condition Mentioned in the Certification Was the Hand

Many employees seek FMLA leave for more than one medical condition within the same year. This can create difficulties for both employee and employer. It is important to read medical certifications carefully, as is noted in Greer v. Cleveland Clinic Health System – East Region, 2012 U.S. App. LEXIS 22594 (6th Cir. 2012).

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Third Circuit Holds That Employer Can Terminate Employee on FMLA for Violation of Paid Sick Leave Policy by Traveling Far From Home During Leave Without Permission

Someone who is on FMLA is still subject to other leave policies like call-in policies and paid sick leave policies prohibiting distant travel

The case of Denise Pellegrino v. Communications Workers of America, AFL-CIO, 2012 U.S. App. Lexis 7902 (3d. Circuit 2012) offers important guidance for employers who struggle to deal with the FMLA in the context of a paid sick leave policy.

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Circuit Court Holds That The FMLA Protects A Pre-Eligibility Leave Request For Post-Eligibility Maternity Leave

Employers need to consider the risks of terminating an employee who has asked for FMLA and would soon become eligible

Kathryn Pereda brought a suit for interference with her FMLA rights against her employer, Brookdale Senior Living Communities, Inc. in Florida. The problem from a legal point of view with her law suit is that she did not have the necessary 1,250 hours and one year of employment for eligibility. She began with the company on October 5, 2008 and was terminated 11 months later. She advised her employer in June of 2009 that she was pregnant and would be requesting FMLA on or about November 30, 2009. She was terminated in September 2009, not having worked one full year at that time and not having 1,250 hours at that time.

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Recent Case Law Opens Cracks In The FMLA

The heart of the FMLA is job protection for employees during a period of covered leave. Employers are required under the FMLA regulations to designate leave as FMLA-qualifying based on information received from an employee. The employee need not ever mention the FMLA nor ask for it specifically. “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee as provided in § 825.300 (d).” 29 C.F.R. § 825.300(a).

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Calling In “Sick” Is Not Enough To Invoke The FMLA

Employers are somewhat behind the eight ball in the FMLA because the employee need not specifically invoke the “FMLA” in order to obtain protection under the law. Nor does the employee have to give detailed information about health; rather, the employer has to consider whether the FMLA applies based on what the employee says is the reason for absence. What if the employee only says “I’m out today because I am sick?” If that happens, the lesson in Collins v. NTN-Bower Corporation, 272 F.3d 1006 (7 th Cir. 2001) is that this is not enough to trigger FMLA protection.

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Employer Properly Fired Employee For FMLA Abuse

Erik Tillman worked as a Communications Specialist for Ohio Bell Telephone. His work required him to fill customer orders for phone and internet services and do maintenance work, including lifting up to 100 pounds and climbing ladders. He was frequently required to work nights and weekends due to his low seniority within the union. He took FMLA leave several times for his back condition and for depression.

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