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Failure To Follow Through On Alcohol Treatment Legitimate Basis For Discipline

While working as an Omaha Police Department (OPD) officer, Jason Christensen sought leave under the Family and Medical Leave Act (FMLA) to get treatment for his alcoholism. He was granted FMLA leave in April 2015, until he exhausted his leave on or about July 18, 2015. Christensen sought voluntary inpatient alcohol treatment at Valley Hope of Omaha, an addiction treatment center, from April 26, 2015, through May 17, 2015….

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Forced Overtime Policy Violates FMLA

Debra Nelson and Michael Krah are corrections officers for Allegheny County, Orlando. Krah has been certified as eligible for intermittent leave under the FMLA on account of his need to care for his mother, who is suffering from Alzheimer’s. Nelson has been certified as eligible for intermittent leave under the FMLA by reason of her own serious medical needs. Because of these conditions, Nelson and Krah are restricted from…

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Q & A

From Iowa Question: Do Garrity rights apply during an internal investigation (administrative investigation) for police officers who are not the subject of the investigation but may merely be witnesses? For instance, I sat in on a series of interviews today, and for the first one, the sergeant stated that he understood Garrity only applied to those who were the subject of the investigation, and not witnesses. I asked if…

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Employee Need Not Say ‘FMLA’ In Order To Request FMLA-Qualifying Leave

Yasin Reeder was employed as a police officer for the Wayne County, Michigan Sheriff’s Office, and worked in the jail. In 2013, Reeder began to experience anxiety and depression that interfered with his ability to work. He attributed the anxiety primarily to the discovery of his brother’s body in the Detroit River after he’d been missing for several months, and to his father’s terminal cancer diagnosis. Reeder began to…

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Administrative Leave With Pay Does Not Extend FMLA’s Protections

Kevin Wevodau is a Special Agent in Charge of the Bureau of Criminal Investigations for the Office of the Attorney General of Pennsylvania. Wevodau’s ultimate supervisor was now-former Attorney General Kathleen Kane. Prior to accepting his position with Kane’s administration, Wevodau worked for the Federal Bureau of Investigation. Within a few months of working for Kane, Wevodau discovered that Kane was suspicious of him, and she accused him of…

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FMLA Claim Can Be Based On Inadequate Disciplinary Investigation

Robert Festerman was a police officer in the Wayne County, Michigan jail. Due to understaffing, involuntary overtime was a common occurrence, and deputies like Festerman did not have the right to refuse overtime assignments. If an officer refused a mandatory overtime assignment or failed to report for such assignment, that officer’s supervisor would issue a Conduct Incident Report (CIR), documenting the officer’s refusal to follow a direct order. It…

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How The ADA And FMLA Interact In The Fitness-For-Duty Process

Susan White is employed as a Senior District Attorney Investigator with the Los Angeles County District Attorney’s Office (DA). Her job includes personally serving arrest warrants, making arrests, interrogating suspects, and booking prisoners, and requires police officer certification. Beginning in late 2009, around the time of the death of her brother-in-law, White began experiencing emotional difficulties. She was observed acting erratically in the workplace, with very high emotional highs…

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Q & A

From California Question: Does the FMLA restrict an employer from contacting an employee who is off on sick leave (stress) to set up a future interview date/time for an IA investigation where the employee is the subject of that investigation? Rumor is the stress medical condition is partly caused by the employee being the subject of the IA investigation. Answer: To the best of my knowledge, this issue isn’t…

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Volunteer Firefighters Can Be Employees For Purposes Of FMLA, FLSA

Paul Mendel was a police dispatcher for the City of Gibraltar, Michigan. When he was fired, he sued the City, claiming violations of the Family and Medical Leave Act (FMLA). At the time Mendel was terminated from his position, the City employed 41 individuals, excluding its “volunteer” firefighters. According to the Fire Chief’s estimate, the City typically had between 25 and 30 volunteer firefighters. The volunteer firefighters were required…

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Arbitrator’s Sick Leave Decision Violates FMLA, Is Overturned

Burlington County, New Jersey is party to a collective bargaining agreement with Local 249 of the Police Benevolent Association. The sick leave section of the contract provides that “if it is reasonably suspected that the employee is abusing the sick leave privilege, the Jail Administrator may require the employee seeking leave to submit proof of illness. If the employee fails to provide proof of illness, the employee shall suffer…

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If Employee Does Not Request FMLA Leave, Employer Cannot Demand Certification From Doctor

The Family and Medical Leave Act (FMLA) allows employers to request medical certification from employees who request leave under the Act. The FMLA also allows an employer to unilaterally designate leave taken by an employee as FMLA leave, even over the employee’s objections. A New Jersey appellate court recently had to decide whether employer-designated FMLA leave allows an employer to demand medical certification. The case involved an employee of…

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If Employee Does Not Request FMLA Leave, Employer Cannot Demand Certification From Doctor

The Family and Medical Leave Act (FMLA) allows employers to request medical certification from employees who request leave under the Act. The FMLA also allows an employer to unilaterally designate leave taken by an employee as FMLA leave, even over the employee’s objections. A New Jersey appellate court recently had to decide whether employer-designated FMLA leave allows an employer to demand medical certification. The case involved an employee of…

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FMLA Update: FMLA Qualified Exigency Military Leave Has Limits

By Christopher W. Olmsted Question: One of our employees has a son who is an army recruit and he is about to complete basic training. There will be a ceremony which the employee would like to attend, but she would need to take two days off for work. Would this leave be protected under the FMLA? Answer: Although the FMLA allows employees to take leave for a “qualifying exigency”…

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Police Commission’s Decision Does Not Insulate City From Police Chief’s Retaliatory Motive

Daniel Rasic was a police officer with the City of Northlake, Illinois. When he was fired, Rasic sued the City and Police Chief Dennis A. Koletsos, claiming his termination was in retaliation for the exercise of his rights under the Family and Medical Leave Act. When a jury found in Rasic’s favor and awarded him damages of $174,000, the City and Koletsos filed a motion seeking to overturn the…

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Termination For Officer’s AWOL Status Does Not Violate FMLA

Ellis Jenerette, a Montgomery County, Maryland corrections officer, has moderate persistent asthma, which he treats with daily medication. Jenerette’s asthma began in childhood but worsened after he moved to Maryland in 1989. From the beginning of his employment, Jenerette failed to maintain regular job attendance. At Jenerette’s first job performance evaluation in May 2002, his attendance was rated as “marginal.” In every subsequent performance evaluation from May 2003 until…

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Police Department Need Not Wait For Actual Personnel Problems To Order Fitness For Duty Evaluation

Oscar Brownfield began working as a police officer for the Yakima, Washington Police Department in November 1999. Approximately one year later, he suffered a closed head injury in an off-duty car accident. After recovering from symptoms including reduced self-awareness, Brownfield returned to full duty in July 2001. He received positive performance evaluations and was awarded several commendations over the next three years. In June 2004, Brownfield began having problems…

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Deputy Not Required To Say ‘FMLA’ To Request FMLA Leave

Randall Miller was a deputy sheriff with the Boyle County, Kentucky Sheriff’s Department. In 2007, Miller began having severe headaches which caused him to miss work occasionally. Over the course of 2007 and 2008, Miller’s condition worsened and he began to experience what he described as blackout spells. On August 29, 2008, Miller invited Chief Deputy Jimmy Wilcher to his home and discussed for the first time his condition,…

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Congress Expands Family Military Leave

On October 28, 2009, President Barack Obama signed the National Defense Authorization Act (NDAA) for the 2010 Fiscal Year, which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA). The NDAA amends both the “qualifying exigency” leave and military caregiver leave that became effective in January 2008. Q: What specifically in the FMLA does this affect? A: The new amendments affect FMLA…

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Columbus PD Sick Leave Verification Policy Called Into Question

Recent years have seen the sick leave verification programs of public safety employees increasingly under attack. Most usually, employees file lawsuits contending that an employer’s verification program violates their privacy rights under either the Americans With Disabilities Act or a general constitutional right to privacy. The sick leave verification policy for the Columbus, Ohio Police Department ran into tough sledding in federal court this summer. Under the policy, an…

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Flurry Of New Laws/Regulations Has Employers Scurrying To Come Into Compliance

The last 12 months have seen what is certainly the most active period of federal employment legislation and regulation changes in the last 25 years. A spate of new laws – with more likely to arrive in upcoming months – has left employers scrambling to comply. The deluge started on May 21, 2008, when President Bush signed into law the Genetic Information Nondiscrimination Act (GINA). GINA prohibits employers from…

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New FMLA Regulations Leave Employers Scrambling To Comply

After years of waiting, the U.S. Labor Department (DOL) has just published new regulations interpreting the Family and Medical Leave Act (FMLA). These are the first significant changes since 1994, and will impact every employer subject to the law. The 762 pages of regulations not only address two new forms of military leave created earlier this year, but also make minor tweaks, major adjustments and wholesale changes to sections…

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