Tag Archives: 1993 Family Medical Leave Act

Spanish Version of Revised FMLA Poster Now Available

Contributed by Jonathon Hoag

The U.S. Department of Labor (DOL) has issued the Spanish version of the revised General FMLA Notice Poster.  The FMLA regulations have long-required that all covered employers must post notice of FMLA rights and obligations prominently where such notice can be seen by employees and applicants for employment.  The notice must be posted at all locations where the employer has employees.  The required notice was revised earlier this year to reflect the February 2013 FMLA revisions related to military leave and leave for airline flight crew employees.  The revised poster was just recently made available in Spanish.  It should be noted that the DOL has also translated other FMLA forms and guidance into Spanish, which are available on DOL’s website.

The regulations state that when an employer’s workforce “is comprised of a significant portion of workers who are not literate in English, the employer shall provide the general notice in a language in which the employees are literate.”  Unfortunately, the DOL has not provided specific guidance to determine what constitutes a “significant portion,” so employers must use reasonable business judgment when determining what languages are applicable.

Employers should be sure that updated versions of the FMLA general notice are posted in accordance with the rules.  This includes all electronic postings and postings incorporated in employee handbooks or manuals.  As a reminder, failure to provide proper FMLA notice can jeopardize an employer’s FMLA defense and subject the employer to possible civil penalties.

A Prescription For Termination Under the FMLA

Contributed by Beverly Alfon

The U.S. Court of Appeals in the Seventh Circuit recently issued a decision that adds yet another nuance to the myriad of caselaw that we rely on to navigate the Family Medical Leave Act.  In Jones v. C&D Techs., Inc., 7th Cir. Case No. 11-3400 (6/28/2012), the court distinguished the definition of “treatment” as it relates to determining whether or not an employee has a serious health condition, from how it relates to whether or not an employee is able to perform his/her job duties.   

According to the court, Jones suffered from periodic leg and back pain and anxiety.  At the time of his termination, he had a history of absences for which he accumulated penalty points under the company’s attendance policy. The policy provided that if Jones accrued even a half point more, he would be subject to termination. For the day in question, Jones received permission to attend an afternoon medical appointment – but he failed to appear for work at all.  Instead, Jones made an unscheduled visit to his doctor’s office to pick up a prescription refill order.  The doctor did not examine Jones on that day. 

Jones’ morning absence from work resulted in an additional penalty point and the company fired him.  Jones sued the company alleging violation of the FMLA.  The District Court ruled in favor of the company on a motion for summary judgment, finding that Jones was not entitled to FMLA leave for that morning appointment because he did not receive medical treatment for his condition. 

The appellate court agreed with the lower court’s decision, but explained that in addition to establishing a “serious health condition,” Jones was required to establish that he was unable to perform his job duties.  To establish an inability to work, the court reasoned that the employee “must be absent from work to receive medical treatment.” The fact that Jones suffered a chronic condition that required continuing treatment was not enough to raise the unscheduled visit to the doctor’s office to the level of necessary medical treatment that required the employee to be absent from work that morning. 

Bottom Line:  In the Seventh Circuit (Illinois, Indiana and Wisconsin), it is not enough for an employee to establish that s/he suffers from a serious health condition. Rather, in order to be entitled to FMLA leave, the treatment for that serious health condition must prevent the employee from performing his/her job duties. However, it should be noted that the court hinted that if Jones received the prescription refill in conjunction with a physical examination from his doctor, he may have been eligible for FMLA leave.