Categories
Family and Medical Leave Act (FMLA)

You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims

You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Family and Medical Leave Act (FMLA) on Thursday, December 5, 2019.

By now it is almost cliché to talk about the “Bermuda Triangle” of employment law – difficult issues involving the ADA, FMLA and Worker’s Compensation and the consternation they cause employers. Recently, however, Wessels Sherman attorney Alan Seneczko, who manages the firm’s Wisconsin office, won a big victory for a client seemingly caught in that quagmire.

In Peters v. Dielectric Corporation, Case No. 18-cv-811 (E.D. Wis. Oct. 17, 2019), the plaintiff filed claims under the ADA and FMLA, alleging that the company failed to accommodate her disability and interfered with her right to reduced leave when it refused to allow her to work in her position 30 hours per week subject to a 20 pound lifting restriction, as she had been doing for three years due an alleged work-related back injury and the medical certifications she had submitted in connection with it. The company transferred her to another position after it was forced to eliminate part-time work in the position she had been working. She then claimed that the new position caused her problems and demanded to return to her former position.

In the meantime, the company received copies of records that the plaintiff had filed in support of her worker’s compensation claim, including reports from her treating physician and vocational experts. One document included permanent restrictions – which she had never presented to the company, that restricted her from performing any repetitive work with her hands, an essential function of her job. The report from her vocational expert included his conclusion that the requirements of her job exceeded her restrictions, as well as her report that her sister was helping her do the lifting, bending and carrying required of the job. After reviewing this information and conducting an interactive accommodation conference with the employee, the company concluded it had no work within the employee’s restrictions and terminated her employment, which prompted the ADA and FMLA claims.

Seneczko argued that, in light of the plaintiff’s permanent restrictions from her treating physician and the opinion of her own vocational experts, she was not a “qualified individual” protected under the ADA or entitled to leave under the FMLA, because she was not able to perform the essential functions of her job, with or without accommodation. He also argued that the representations she made in order to secure worker’s compensation and Social Security Disability benefits judicially estopped her from taking a contrary position in order to prevail in her ADA and FMLA claims. The court agreed and dismissed her case, finding:

Peters cannot have it both ways – she cannot assert an inability to do anything repetitive with her hands in the hopes of obtaining disability or worker’s compensation benefits, while at the same time present herself as able to perform the essential functions of her job . . . which includes repetitive use of the hands, in order to secure employment.

It reached a similar conclusion with respect to her FMLA claim:

If Peters now asserts that her medical condition was either not permanent or that the restriction regarding repetitive use of her hands was incorrect, that defies her assertions in her Social Security disability application, her worker’s compensation case, and her testimony in this case. While [the company] had been granting Peters intermittent FMLA leave for years, once it learned through her doctor’s restrictions that she could no longer perform the essential functions of the job . . . [it] had no duty under the FMLA to return Peters to her position.

Simply stated, you cannot have it both ways.

Oliver Wendell Holmes once said, “Do not be bullied out of your common sense by the specialist . . . ” The same can be said when dealing with issues under the ADA, FMLA and worker’s compensation. Sometimes, you just have to take people at their word – and that of their own experts.

If you have questions about the ADA, FMLA, duty to accommodate and/or worker’s compensation – and how to deal with all three of, feel free to contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

Related Posts: Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA, FMLA and Substance Abuse, Is Your Company Covered Under the Family and Medical Leave Act?, Extended Medical Leaves and the ADA: Court Provides Much-Needed, Long-Awaited Clarity

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Categories
Family and Medical Leave Act (FMLA)

Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA

Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Americans with Disabilities Act (ADA) on Wednesday, August 29, 2018.

Administering employee leaves of absence is complicated. For employers of 50 or more employees there obviously are the Family and Medical Leave Act (FMLA) and D.O.L. regulations to deal with. Then there is the EEOC, which has interpreted the Americans with Disabilities Act (ADA) to require leaves of absence, or extending them under certain circumstances as a reasonable accommodation of an individual’s disability. Add worker compensation laws that provide for reinstatement of employees following a work-related illness or injury, as well as an ever growing list of other federal, state and, more recently, local laws governing what employers may or may not do about employee absences and even the most experienced HR professionals have their hands full. Monitoring FMLA leave (especially intermittent leave), work-related absences, military leave, leave as an accommodation and all the legalities of when and how to return workers from such leaves, can be overwhelming. Not surprisingly, many employers have turned to outsourcing these functions, ostensibly to avoid all the hassles and legal pitfalls they present. However, as a recent U.S. Court of Appeals decision demonstrates all too clearly, turning these responsibilities over to a third party does not rid an employer of responsibility, or liability, for complying with the many workplace leave laws that are at play.

Scudder v. Dollar General Store was decided August 17th by the U.S. Court of Appeals for the 8th Circuit, which oversees Minnesota, Iowa, Missouri, the Dakotas and Nebraska. The plaintiff in the case, Sam Scudder, had been employed as a store manager of a Dollar General store in Arkansas when he was called to active duty as a sergeant with the National Guard. Deployed to action in Afghanistan, he was injured and returned to a medical transition facility where he remained for well over a year. Dollar General outsourced coordination of Scudder’s military leave to a third party: Matrix Absence Management (Matrix). According to the Court’s decision, the day before Scudder’s approved leave was to expire he contacted a representative from Matrix, expressing frustration that his calls to Dollar General were not being returned. He asked (apparently rhetorically, from his perspective) whether he needed to “put in [his] two weeks” because he was not yet able to return to work. The Matrix employee took this as Scudder’s resignation and communicated it as such to Dollar General, who then processed employment separation notices and other paperwork.

Upon receiving notice from Dollar General that his employment was ended Scudder responded by email, noting that he was called to active duty in Afghanistan as part of Operation Enduring Freedom, again expressing frustration that he was unable to reach someone in human resources or the district manager where he previously worked. Scudder then applied for a store manager position opening at another store, indicating that he had worked as a store manager for Dollar General but had been let go after returning from military service, where he was injured. After he did not get the job Scudder sued, claiming his rights to reemployment under the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA), were violated. The trial court granted summary judgment to Dollar General, dismissing Scudder’s lawsuit without a trial. The trial court judge reasoned that Dollar General reasonably expected Scudder to seek reemployment through Matrix, its third party leave coordinator. Therefore, the judge concluded that none of Scudder’s separate communications with Matrix and Dollar General’s management, were sufficient by themselves to constitute and “application for reemployment” as required by USERRA. However, on appeal, the appellate court disagreed, reversing the trial court’s decision.

It is clear from the appellate court’s analysis in this case that, unlike the trial court, it would not assess Scudder’s communications with Matrix separately from what he communicated directly to Dollar General. Consequently, despite the fact that Matrix’s representative interpreted Scudder’s comments as his resignation, in the court’s view his near simultaneous communications directly to Dollar General suggested otherwise. Specific to USERRA, the court noted that an employee’s request for reinstatement need not be in writing or any particular form. Rather, the question is merely “whether… a reasonable employer would be put on notice that the applicant is a returning veteran who seeks reemployment.” The court went on to say that “[a]lthough Dollar General may have preferred Scudder to seek reemployment through Matrix, he was under no obligation to do so.”

In sum, even though Scudder appears to have caused any confusion between this employer and its third-party leave coordinator, Matrix, the court of appeals refused to let Dollar General off the hook over any misunderstandings. These same sorts of problems might occur in the context of any other type of leave employers commonly outsource to a third-party administrator, such as FMLA, worker’s compensation, STD and other forms of leave. Therefore, this decision holds important lessons for employers who outsource administration of employee leaves of absence, or are considering using a third-party coordinator, including:

1. Legal responsibilities can never be truly outsourced; employers bear the ultimate responsibility for compliance with workplace laws.

2. It follows from lesson #1, then, that where an employee communicates with both a third-party vendor and the employer, the two should share that information with one another so as to be on the same page.

3. Termination decisions always rest with the employer, so relying solely on a vendor for facts can be risky (as this case demonstrates with the misunderstanding that Scudder quit, communicated to Dollar General).

4. The lessons of this USERRA case may apply in the context of FMLA and a host of other leave management scenarios. Besides misunderstandings between employers and third-party vendors, problems also arise where there are misunderstandings or miscommunications between members of management in the same organization.

QUESTIONS? Contact Attorney James Sherman in our Minneapolis office at (952) 746-1700 or by email at jasherman@wesselssherman.com or contact the attorneys in our other offices.

Related Posts: You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims, Is Obesity A Disability?, Don’t Like Your Boss? How About Demanding a New Supervisor as an Accommodation?, Service Animals in the Workplace

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Categories
Americans with Disabilities Act (ADA) EEOC Family and Medical Leave Act (FMLA)

Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA

Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Americans with Disabilities Act (ADA) on Wednesday, August 29, 2018.

Administering employee leaves of absence is complicated. For employers of 50 or more employees there obviously are the Family and Medical Leave Act (FMLA) and D.O.L. regulations to deal with. Then there is the EEOC, which has interpreted the Americans with Disabilities Act (ADA) to require leaves of absence, or extending them under certain circumstances as a reasonable accommodation of an individual’s disability. Add worker compensation laws that provide for reinstatement of employees following a work-related illness or injury, as well as an ever growing list of other federal, state and, more recently, local laws governing what employers may or may not do about employee absences and even the most experienced HR professionals have their hands full. Monitoring FMLA leave (especially intermittent leave), work-related absences, military leave, leave as an accommodation and all the legalities of when and how to return workers from such leaves, can be overwhelming. Not surprisingly, many employers have turned to outsourcing these functions, ostensibly to avoid all the hassles and legal pitfalls they present. However, as a recent U.S. Court of Appeals decision demonstrates all too clearly, turning these responsibilities over to a third party does not rid an employer of responsibility, or liability, for complying with the many workplace leave laws that are at play.

Scudder v. Dollar General Store was decided August 17th by the U.S. Court of Appeals for the 8th Circuit, which oversees Minnesota, Iowa, Missouri, the Dakotas and Nebraska. The plaintiff in the case, Sam Scudder, had been employed as a store manager of a Dollar General store in Arkansas when he was called to active duty as a sergeant with the National Guard. Deployed to action in Afghanistan, he was injured and returned to a medical transition facility where he remained for well over a year. Dollar General outsourced coordination of Scudder’s military leave to a third party: Matrix Absence Management (Matrix). According to the Court’s decision, the day before Scudder’s approved leave was to expire he contacted a representative from Matrix, expressing frustration that his calls to Dollar General were not being returned. He asked (apparently rhetorically, from his perspective) whether he needed to “put in [his] two weeks” because he was not yet able to return to work. The Matrix employee took this as Scudder’s resignation and communicated it as such to Dollar General, who then processed employment separation notices and other paperwork.

Upon receiving notice from Dollar General that his employment was ended Scudder responded by email, noting that he was called to active duty in Afghanistan as part of Operation Enduring Freedom, again expressing frustration that he was unable to reach someone in human resources or the district manager where he previously worked. Scudder then applied for a store manager position opening at another store, indicating that he had worked as a store manager for Dollar General but had been let go after returning from military service, where he was injured. After he did not get the job Scudder sued, claiming his rights to reemployment under the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA), were violated. The trial court granted summary judgment to Dollar General, dismissing Scudder’s lawsuit without a trial. The trial court judge reasoned that Dollar General reasonably expected Scudder to seek reemployment through Matrix, its third party leave coordinator. Therefore, the judge concluded that none of Scudder’s separate communications with Matrix and Dollar General’s management, were sufficient by themselves to constitute and “application for reemployment” as required by USERRA. However, on appeal, the appellate court disagreed, reversing the trial court’s decision.

It is clear from the appellate court’s analysis in this case that, unlike the trial court, it would not assess Scudder’s communications with Matrix separately from what he communicated directly to Dollar General. Consequently, despite the fact that Matrix’s representative interpreted Scudder’s comments as his resignation, in the court’s view his near simultaneous communications directly to Dollar General suggested otherwise. Specific to USERRA, the court noted that an employee’s request for reinstatement need not be in writing or any particular form. Rather, the question is merely “whether… a reasonable employer would be put on notice that the applicant is a returning veteran who seeks reemployment.” The court went on to say that “[a]lthough Dollar General may have preferred Scudder to seek reemployment through Matrix, he was under no obligation to do so.”

In sum, even though Scudder appears to have caused any confusion between this employer and its third-party leave coordinator, Matrix, the court of appeals refused to let Dollar General off the hook over any misunderstandings. These same sorts of problems might occur in the context of any other type of leave employers commonly outsource to a third-party administrator, such as FMLA, worker’s compensation, STD and other forms of leave. Therefore, this decision holds important lessons for employers who outsource administration of employee leaves of absence, or are considering using a third-party coordinator, including:

1. Legal responsibilities can never be truly outsourced; employers bear the ultimate responsibility for compliance with workplace laws.

2. It follows from lesson #1, then, that where an employee communicates with both a third-party vendor and the employer, the two should share that information with one another so as to be on the same page.

3. Termination decisions always rest with the employer, so relying solely on a vendor for facts can be risky (as this case demonstrates with the misunderstanding that Scudder quit, communicated to Dollar General).

4. The lessons of this USERRA case may apply in the context of FMLA and a host of other leave management scenarios. Besides misunderstandings between employers and third-party vendors, problems also arise where there are misunderstandings or miscommunications between members of management in the same organization.

QUESTIONS? Contact Attorney James Sherman in our Minneapolis office at (952) 746-1700 or by email at jasherman@wesselssherman.com or contact the attorneys in our other offices.

Related Posts: You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims, Is Obesity A Disability?, Don’t Like Your Boss? How About Demanding a New Supervisor as an Accommodation?, Service Animals in the Workplace

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Categories
Family and Medical Leave Act (FMLA)

FMLA and Substance Abuse

FMLA and Substance Abuse

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Family and Medical Leave Act (FMLA) on Friday, June 15, 2018.

Substance abuse (whether it be related to alcohol or drug use) is a potentially serious workplace issue that can quickly become extremely complicated. It is very important for all Employers to keep in mind that substance abuse can, in and of itself, be considered as a serious health condition and as such, may come under coverage of the Family Medical Leave Act and allow the Employee to be qualified for FMLA Leave.

Substance abuse issues and FMLA Leave must be viewed in the context that FMLA Leave for substance abuse will only occur when the individual is receiving treatment for substance abuse as provided and administered by a healthcare provider. Since FMLA Approved Leave is for treatment only, an Employer need not tolerate or excuse absences not covered by FMLA Leave because of an Employee’s use of a substance. While an Employer may not take action against an Employee because they are exercising their FMLA rights, an Employer has the right to take employment action for substance abuse assuming that an Employer has an established policy that is applied in a nondiscriminatory manner and has been communicated to all Employees that establishes that substance abuse (the use of the alcohol and/or drugs that affect the workplace) may be grounds for termination.

While an Employee may be perfectly entitled to the use of FMLA for substance abuse treatment, once that Employee has returned to work and establishes a violation of policy for use of substances at work or the failure to report to work, even though the Employee may have “fallen off the wagon” and relapsed into his/her substance abuse, the Employer has every right, assuming the existence of a communicated aubstance abuse policy, to invoke that policy and terminate the individual for his/her actions. The Employer is not terminating the individual because of their treatment and/or use of FMLA to participate in a treatment program, the Employer is terminating the individual for their actions effecting the Employer due to their actual substance abuse.

While Employers must try to balance the goals of a safe and healthy work environment with the understanding that substance abuse can be a serious health condition, Employers should keep in mind that once the FMLA substance abuse treatment leave ends, the involved Employee would still be subject to legally enforceable policies of the Employer with regard to workplace violations for their substance abuse.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

Related Posts: You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims, Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA, Is Your Company Covered Under the Family and Medical Leave Act?, Extended Medical Leaves and the ADA: Court Provides Much-Needed, Long-Awaited Clarity

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Categories
Family and Medical Leave Act (FMLA)

Is Your Company Covered Under the Family and Medical Leave Act?

Is Your Company Covered Under the Family and Medical Leave Act?

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Family and Medical Leave Act (FMLA) on Tuesday, April 24, 2018.

Did you Count Temp and Part-Time Employees?

If you are a Company covered under the Family and Medical Leave Act (FMLA), eligible employees are entitled to leave (either consecutive or intermittent) of up to 12 work weeks of leave in a 12 month period under certain circumstances. PLUS the Company must continue to pay the employer’s share of the employee’s individual group health insurance premiums during the leave. These entitlements can be very disruptive and costly to an employer. So, is your Company covered?? Does your Company have to have and follow an FMLA policy?

Under federal law, the Family and Medical Leave Act, a private employer is covered if it maintained 50 or more employees (full or part time) on the payroll during 20 or more calendar work weeks (not necessarily consecutive work weeks) in either the current or the preceding calendar year. If you have fewer employees than this, your Company does not have to have an FMLA policy.

As to temp employees, the Company must count such employees in determining the Company’s coverage under the Family and Medical Leave Act. Click here to see Fact Sheet #28N: Joint Employment and Primary and Secondary Employer Responsibilities under the Family and Medical Leave Act (FMLA) as issued by the US Department of Labor Wage and Hour Division.

Thus, the headcount for a Company to determine if it is covered under the Family and Medical Leave Act includes all part-time employees and temp employees.

If you have any questions on this topic and FMLA, please contact attorney Anthony J. Caruso in our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com

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Categories
Americans with Disabilities Act (ADA) Family and Medical Leave Act (FMLA)

Extended Medical Leaves and the ADA: Court Provides Much-Needed, Long-Awaited Clarity

Extended Medical Leaves and the ADA: Court Provides Much-Needed, Long-Awaited Clarity

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Family and Medical Leave Act (FMLA) on Thursday, October 12, 2017.

“The ADA is an antidiscrimination statute, not a medical-leave entitlement.” These are the words employers have been waiting more than 25 years to hear, since the date the ADA first became effective, and even more so after the passage of the Family Medical Leave Act in 1993. They address an issue that has vexed employers since day one; that is, whether the duty to accommodate requires an employer to provide an extended medical leave after an employee has exhausted all of the medical leave available to him under the FMLA. The EEOC has vigorously contended that it does, particularly where the proposed leave is of a definite, time limited duration; requested in advance; and, likely to enable the employee to perform the essential functions of his job upon his return. On September 20, 2017, the Seventh Circuit Court of Appeals flatly rejected the EEOC’s contention.

In Severson v. Heartland Woodcraft, Case No. 15-3754 (7th Cir. 2017), the court addressed an issue that is now commonplace for employers: An employee had a serious back problem. He took 12 weeks of FMLA, then, upon the exhaustion of his FMLA, notified his employer that he was having surgery and requested a two-month extension. The employer denied his request, terminated his employment and invited him to reapply once he was released to return to work. However, when the employee was released three months later, he did not reapply. Instead, he sued, claiming the employer had failed to accommodate his disability by refusing to grant him an extended medical leave.

In a decision striking for its clarity and common sense, Circuit Judge Dianne Sykes held that an employee who needs long-term medical leave cannot work and is thus not a “qualified individual” under the ADA. In doing so, she specifically found: “A multimonth leave of absence is beyond the scope of reasonable accommodation under the ADA,” and further noted, “an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.” Thus, while brief periods of leave to deal with medical conditions could be a reasonable accommodation in some circumstances (e.g, when dealing with flare-ups of intermittent conditions that require a couple of days or weeks’ absence), medical leaves that span multiple months are not, since “long-term medical leave is the domain of the FMLA,” not the ADA.

The Severson decision is a much-needed beacon of light on an issue that has been shrouded in grey. Employers can now determine, with reasonable certainty, that requests for medical leave extending months beyond the exhaustion of all FMLA rights are not reasonable as a matter of law, and an employee requesting such an extension is not a “qualified individual with a disability” protected by the ADA.

Of course, the only remaining question is whether the same holds true under a state fair employment law, such as the Wisconsin Fair Employment Act, where the Wisconsin Supreme Court has already held that it is not bound by interpretations of the ADA when dealing with the duty to accommodate under Wisconsin law. Stay tuned.

If you would like more information, or have questions about the Severson decision or the interaction between the ADA and FMLA, contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

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Family and Medical Leave Act (FMLA)

Family Medical Leave Expansion

It reached a similar conclusion with respect to her FMLA claim:

Family Medical Leave Expansion

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Family and Medical Leave Act (FMLA) on Friday, June 15, 2012.

As most employers know, the Department of Labor Family Medical Leave Act (FMLA) forms which were initially issued in the early 1990s expired as of December 31, 2011. The Department of Labor (DOL) has been working with the Office of Management and Budget to extend the life of these forms and received approval that their model forms will be extended through February 28, 2015. Unfortunately, the DOL has made very few changes to those forms to incorporate any required modifications with regard to the expansion of Military Family Leave and the provisions of the Genetic Information Non-Discrimination Act of 2008 (GINA).

It should be noted that as of 2010, many amendments were passed with regard to Military Family Leave and related exigency leave. The proposed regulations allow employees to take up to 12 weeks of FMLA leave for a “qualifying exigency” due to a family member’s call to active duty in a foreign country. The qualifying ranges of the exigency leave normally encompass a wide range of activities dealing with that service member’s deployment such as attending to legal, financial, family, child care, school, and other related matters. The FMLA has also been revised to allow employees up to 26 weeks of job protected leave in a single “12 month period” to care for a service member with a “serious injury or illness related to his/her military service.” Note that prior to the National Defense Authorization Act of 2010, exigency leave was only available to family members of Reserve and National Guard units and not regular service members. However, with the passage of the National Defense Authorization Act of 2010 and the proposed regulations, FMLA leave is now available to family members of regular service members, as well as Reserve and Guard units. Efforts should be made to modify all FMLA leave documentation to reflect these changes. Further information regarding these issues can be obtained from the Department of Labor website, Fact Sheet 28 and 28A.

As well, the Genetic Information Non-Discrimination Act of 2008 (GINA), prohibits discrimination and harassment based on genetic information and prohibits employers from acquiring genetic information except in very narrow circumstances. Genetic information includes:

  • Information about an individual’s genetic tests.
  • Information about genetic tests of an individual’s family.
  • Information about the manifestation of a disease or disorder in an individual’s family.
  • Genetic information dealing with a fetus carried by an individual or by some pregnant woman who is a family member of the individual.

It is strongly suggested that for both FMLA leave documentation dealing with an individual and an individual’s family, the following be added to all required FMLA forms:

The Genetic Information Non-Discrimination Act of 2008 prohibits employers and other entities covered by Title 2 of the Act from requesting or requiring genetic information of an individual or family member of that individual except as specifically allowed by the Genetic Information Non-Discrimination Act. To comply with this law, we request that you not provide any genetic information when responding to this request for medical information. Genetic information, as defined by the Genetic Information Non-Discrimination Act of 2008, includes an individual’s family medical history; the result of an individual’s or family member’s genetic testing; the fact that an individual or an individual’s family member sought or received genetic services; any genetic information regarding a fetus carried by that individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving reproductive services.

The use of the suggested Department of Labor Forms was based on alleviating any possible “technical violations” that might have occurred through the use of employer-created forms. The author suggests that the genetic information referred above be merely added to the Department of Labor Forms dealing with the Certification of Health Care Provider by attaching as an amendment.

Questions? Contact Walter J. Liszka in the Chicago office at waliszka@wesselssherman.com or by phone at (312) 629-9300. 

Related Posts: You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims, Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA, FMLA and Substance Abuse, Is Your Company Covered Under the Family and Medical Leave Act?

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