Although the country witnessed the House pass a historic health care reform bill late Sunday  night, many of us still had to roll out of bed early this morning and head to work. Of course, unless you called in sick.

The U.S. Court of Appeals for the 3rd Circuit recently issued an opinion on an issue of first impression in Schaar v. Lehigh Valley involving the sufficiency of evidence documenting an incapacitating medical condition under an employer’s Family and Medical Leave Act sick leave policy.

The Family and Medical Leave Act requires employers to grant an eligible employee up to 12 weeks of unpaid leave during any 12-month period for one or more of the following reasons:

• for the birth and care of the newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
• to take medical leave when the employee is unable to work because of a serious health condition.

The health system, Lehigh Valley, had employed Rachael Schaar for approximately three years as a medical receptionist.  On a Wednesday in 2005, Ms. Schaar was treated for low back pain, fever, nausea and vomiting.  Her treating physician diagnosed her with an infection, fever and low back pain, and prescribed medication before providing her with a medical certification. Ms. Schaar taped this medical certification and a note to her manager’s door, stating that she was unable to work that day or the next.

But her manager was suspicious.  It turns out Ms. Schaar had previously scheduled 2 vacation days to allow for a 4-day weekend.  But, between her sick and vacation days, she ended up missing 4 straight work days.  She claimed that she remained ill all  weekend, even though the doctor’s note covered just two days.

Ms. Schaar did not request an FMLA leave, and Lehigh Valley did not provide her with any paperwork for an FMLA leave.  Apart from that issue, her manager also expressed displeasure at the way she handled her sick leave before insinuating that she might be fired for it.  Six days later, Lehigh Valley did fire her, claiming she had broken its sick leave policies and citing previous mistakes and performance-related issues.

The court’s ruling.  The only issue for the Third Circuit to determine was whether Rachael could make out a valid claim for FMLA leave, which provides the employee with job protection and prohibits discrimination or retaliation, when the medical evidence established a two-day leave instead of the FMLA statutory minimum.

The court first noted that the purpose of the FMLA is “to balance the demands of the workplace with the needs of families,” including reasonable leave for medical reasons.  The court went on to summarize the FMLA’s basic provisions, including providing eligible employees with up to 12 weeks per year of leave for the employee’s own “serious health condition that makes the employee unable to perform” his or her job.  Once an employee is entitled to leave,” the FMLA prohibits an employer from interfering with it or retaliating against an employee for taking it.”

- Flatser Greenberg

The critical issue on appeal in this case was the sufficiency of evidence required to establish the need for medical leave, which lasts three or more days.  Rachael benefited from the ambiguity of the federal regulations that apply to the statute.  In its opinion, the court noted that four other federal appellate courts had previously examined this issue and ruled that expert medical testimony is not the only way to establish an incapacitating medical condition.

Relying on the trend established by other circuits, the court concluded that lay testimony when combined with “some medical evidence . . . to show that the incapacitation was ‘due to’ the serious health condition,” can be enough to satisfy the employee’s burden to prove that the employee is entitled to FMLA leave.  The court was quick to note, however, that lay testimony on its own will not meet the burden of proof for FMLA leave within the states encompassed by the Third Circuit:

“[A]llowing unsupported lay testimony would place too heavy a burden on employers to inquire into an employee’s eligibility for FMLA leave based solely on the employee’s self-diagnosed illness.”

What does this mean for an employee?  Well, it depends on what circuit you live in.  The different Federal circuits that have examined the sufficiency of evidence in proving a valid FMLA leave request have not issued uniformly consistent opinions.  So, to be on the safe side, below are some tips to properly manage your sick leave requests. These guidelines may help you if you are faced with a situation in which you must request sick leave:

• Familiarize yourself with your employer’s personnel rules or handbook and understand who has been assigned to act as your Human Resources representative.
• Understand the employer’s sick day notification policy, whether that means daily call-ins for each sick day taken or some other preferred check-in method.
• Make your sick leave request in writing, unless some other method has been specified by your personnel handbook.  In addition, make sure to direct your request to your direct supervisor or manager as well as your HR representative.  Rare is the manager who is fully trained in the FMLA.  Therefore, by dealing with the HR Department from the beginning, an employee eliminates potential unnecessary confusion.
• You do not need to specify that you seek an FMLA leave since it is the employer’s burden to comply with FMLA requirements.  Rather, if an employee is incapacitated and unable to carry out his or her duties for longer than three days, the employee should provide notice of the incapacitating medical condition to the employer.
• Contact a physician and document the incapacitating medical condition and the expected duration until recovery.  Provide the medical certification to the appropriate employer contact.

Posted by Krystyna on March 22, 2010 at 11:42am.

With unemployment rates exceeding 10% nationwide in most states, these have clearly been rough economic times, and many have lost their jobs. Let’s say you happen to be one of the workers who gets called to human resources, and to your dismay, you learn that you are going to be laid-off. If you have ever heard of the term “severance package,” now would be a good time to negotiate one.

So what is a severance package?  According to FLSAClassAction.com it is “an agreement between an employer and an employee which contains the terms under which the employee’s employment will be terminated. Usually contains a release of all known and unknown claims by the employee against the employer in exchange for a sum of money.”

So how does one negotiate a severance package during a job layoff? Here are a few things you can do:

• You can always negotiate a better deal – Even though companies indicate that severance pay is standard for all employees, employees should understand that severance packages are not created equal and can be negotiated.
• Know your leverage – Leverage is the currency you trade with the employer in severance negotiations, therefore valuing it correctly is necessary. Employees should note that employers don’t want bad publicity, may need you for something later and often wants to guard itself against being sued, especially if you’re a racial minority, older or a woman.
• Know exactly what you are going to say – Severance negotiation is personal, and how you say what you say can make a big difference in negotiation. Never come across as making accusations.
• Be creative – Be creative and take a look at whether you would rather convert some of your non-cash severance benefits to cash or vice versa.
• 401(k) vesting – Employees have successfully argued in lawsuits that they were fired so their employer would not vest their 401(k) contributions. Note that leverage can be used in severance discussions, and that you must work for your employer a certain period of time before your employer’s 401(k) matches yours, which means you can take it with you.

Posted by Syddel on January 14, 2010 at 11:40 am.

This summer, 17 year-old Zikkeria Bellamy applied online to a Florida McDonald’s and was granted an interview. Initially, she chose not to disclose her gender – the box was optional.  When the hiring manager asked her to fill it out, she checked male.  At that point, he told her to leave.  Bellamy soon received a particularly nasty phone call from the manager in which he explained to her why she would not be hired.  Now, the manager has been fired and McDonald’s has been served with a formal discrimination complaint.  What’s going on here?

From BusinessWeek.com

Zikkeria Bellamy was born male.  Anatomically, she is technically a he.  Something in her told her otherwise, and at age 11 she began to live as a female.  This puts her in a kind of tricky position when it comes to gender.  Sexually, Zikkeria is still a male, which means she still has to check “Male” when required – hypothetically, this would only happen if the box is labeled “Sex” and not “Gender”.

Workplace discrimination by sex has been illegal for some time, but gender is another issue.  Whereas sexuality establishes “what” you are, gender clarifies “who” you are.  To date, there is no federal law making it a crime for workplaces to discriminate against a person based on the latter.  Courts, however, have ruled in favor of transgender people in cases involving workplace discrimination – one notable case in Washington, D.C. last year ruled that transgendered people are protected by Title VII of the 1964 Civil Rights Act.

Currently, Florida is one of 38 states which have no law specifically addressing the rights of transgender people in the workplace.  Bellamy’s advocate, the Transgender Legal Defense and Education Fund, argues she is protected under Florida’s Human Rights Act’s prohibition on sex and disability discrimination.

There are a couple of laws pending that would provide future protection.  The Florida legislature is currently discussing the Competitive Workforce Bill, which came into being on November 20 of this year.  It specifically prohibits discrimination based on a person’s gender identity or expression.  The Federal Employment Non-Discrimination Act, which was also introduced by the legislature earlier this year, does essentially the same thing.

Unfortunately, Bellamy is still not guaranteed the position she applied for – the case has not yet come to trial.  She might yet prove herself a kind of martyr for transgender rights, given the attention her complaint has drawn and its proximity to the pending legislation.

What do you think?  Should there be a federal law which distinctly prohibits discrimination based on gender identity?

Posted by Tyler on December 14, 2009 at 2:25 pm.

You know, sometimes it REALLY is them and not you.

As in, maybe your employer really IS trying to make your working environment so intolerable, in an attempt to force you to resign.  No, making 100 copies of a 25 page Powerpoint or going on a coffee run does not constitute intolerable working conditions.  We’re talking substantially increasing/decreasing your workload without cause, demoting your responsibilities or just acting with an unprovoked level of hostility towards you.  Sounds like this applies to you?  Well, be aware that this type of behavior is what is referred to as “constructive discharge”.

The legal definition of constructive discharge is as follows: when an employee resignation is caused solely by an employer implementing or allowing an extraordinary change that made working conditions so intolerable that it would have compelled any reasonable employee to resign.  Further, these are three characteristics of constructive discharge: 1) The employer’s conduct effectively forced the employee to resign; 2) A continuous pattern of employer misconduct existed; 3) Conditions were so egregious and intolerable that any reasonable person would have quit.

But, why would they want to force you out of your job?  Well, maybe your bosses just cannot stand you and, therefore, do not want to be responsible for paying you any type of severance if they lay you off.  If an employee resigns (i.e. voluntarily leaves the company), they are not entitled to collect unemployment.  However, if an employee is basically forced to quit due to a terrible work environment, then, under constructive discharge, there is a possibility that you will be able to collect unemployment – even though you resigned.  Good information to have, don’t you think?

What are some other penalties a company can face under constructive discharge?

For starters, there’s back pay and front pay for the expected length of time it will take an employee to find a job.  In addition, there might even reimbursement for attorney fees.  Also, take into account the fact that there may be monetary damages for pain and suffering.  A harsh working environment really DOES take a toll on your mental health!

Think that this situation applies to you?  Start by taking an inventory of your surroundings and determine if you can apply the three characteristics of constructive discharge listed above to your situation.  If so, perhaps consult an employment lawyer and discuss your experience with them.

No employee deserves to be mistreated by their employer in such an unreasonable manner.  Remember Milton from Office Space?  Know your rights, so that you do NOT turn into the next him.

For more information about constructive discharge, refer to the following webpage: http://definitions.uslegal.com/c/constructive-discharge/.

Posted by Melanie on October 30, 2009 at 12:00 pm.

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Here’s the scenario:

In 2004, an employee at a discount department store reached out about the possibility of suing his employer due to religious persecution. As an employee for over eight years at the department store, he requested Friday nights off for religious reasons. The store denied the time off request, and his hours were then cut to below 20 hours a week.

As a separate issue, he noted that his store manager received a fax from his doctor noting that due to his diabetes he should have a set work schedule to help regulate his meals, medication and blood sugar. He complained that the store manager forced him to work for a month knowing that his health would be at risk. He claims that he was hospitalized twice before because of a strenuous work schedule in unsafe work conditions.

Oddly enough, at the end of his note he mentions a series of unrelated, random facts about: being in a wheelchair, not able to use the phone, owning a dog that bites, and his wife being available on Wednesday to speak by phone.

Our thoughts*:

This gentleman’s letter touched upon a variety of workplace issues, but we’ll try to address them all.

He initially wrote in for advice about filing a lawsuit against his workplace because of religious persecution. Religious persecution is generally viewed as the systematic mistreatment of an individual or a group of individuals in response to their religious beliefs, so that may not be the correct terminology to explain his case. However, federal and state laws prohibit employers to discriminate on the basis of religious orientation. Employers are required to reasonably accommodate an employee’s religious practices, but are not required to accept all of the employee’s requests. His employer cutting his hours to 20 a week may have been an attempt to accommodate for his need to take off Friday evenings. Either way, the general rule of thumb when requesting time off for personal or religious reasons is to plan well enough in advance to give notice and mainly have your responsibilities completed in advance or taken over by a trusted colleague.

His illness of diabetes appears to flag his issue of regulating his meals, medication and blood sugar around his work schedule. The doctor’s note he gave to his manager states that a set work schedule would help him with this issue. Given that most department stores organize multiple employees around set schedules, it’s a possibility that the manager believed that the schedule worked for his needs. An open line of communication between himself and his manager may have helped the manager understand his challenge.

Employees today can consult the Occupational Safety and Health Act of 1970 to determine if their rights in the workplace are being violated. Employees can protect their rights to work in a safe environment by: 1) Calling Occupational Safety and Health Administration’s emergency telephone line at 800-321-OSHA (6742) if there’s a hazard in the workplace that causes an imminent threat; 2) Filing a claim for workers’ compensation benefits for any related medical bills incurred; 3) Informing the employer of the hazardous condition(s); and 4) If the problem still exists, then filing a complaint with OSHA.

What do you think?

With the facts this gentleman presented, would he have had a legitimate cause to complain about his hours being cut and his manager not adhering to his doctor’s orders? Or was he trying to work the system and looking for a way to get rich quick by suing the company for grievances?

Posted by Adrienne on October 14, 2009 at 5:51 pm.

* Our in house attorneys helped us formulate this opinion. Although this is advice from lawyer(s), this is not legal advice. Always consult a lawyer for legal matters.

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