HBy now, hopefully everyone reading this blog knows that the expiration of an employee’s 12 weeks of annual FMLA leave is not necessarily the end of that employee’s unpaid leave of absence for his or her own medical issues. Under the ADA, an employer must consider granting unpaid leave the exceeds the FMLA as a reasonable accommodation, provided that the employee actually requests the accommodation. As Judge v. Landscape Forms (6th Cir. 11/24/14) [pdf] makes clear, an employer is not required to offer a reasonable accommodation that an employee does not first request.
The facts of the case are relatively simply. Mark Judge took an FMLA leave to heal his shoulder after surgery from a non-work injury. At the time of his FMLA leave, he advised the company that his recovery time was 4-6 months. When his 12 weeks of FMLA leave expired, however, he did not advise of an expected return to work date, or otherwise ask for any additional unpaid time off as an accommodation.
Under those circumstances, the court concluded that the company had no obligation to provide any unpaid leave in excess of Judge’s 12 weeks of FMLA:
The EEOC regulations interpreting the ADA place the initial burden of requesting an accommodation on the employee. Once that request is made, the employer has a duty to engage in an interactive process to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. But if the employee never requests an accommodation, the employer’s duty to engage in the interactive process is never triggered….
Judge argues that Landscape Forms should have granted him a leave of absence until mid-November 2011, when he ultimately was released to work without restrictions. However, Judge fails to identify any statement he made before he was fired that could be construed as a request for leave until then….
Leaves of absence and reasonable accommodations are two of the trickier workplace issues facing employers. When those two issues converge with one employee, the complexities increase exponentially. As Judge v. Landscape Forms illustrates, unpaid leaves of absence are not a guaranteed entitlement, and employees must ask for for accommodation before being able to sue over its denial.
Happy Thanksgiving. I am extraordinarily thankful that you take the time to read my thoughts every day. I’ll see everyone back on Monday after a much needed long weekend.
For the fifth year in a row, I am honored that the ABA Journal has chosen the Ohio Employer’s Law Blog for the Blawg 100, its list of the 100 best legal blogs.
Last night on Twitter, another of the honorees affectionately called me an “employment law nerd” because of my selection. It is a title I wear as a badge of honor. As has been the case for the four prior years, I am thrilled to be on a list of blogs of such high quality written by lawyers who are my friends.
Now comes the shameless part. If you are so inclined, the ABA Journal is asking you to weigh in and vote on your favorites. Go to www.abajournal.com/blawg100 to register and vote. Voting ends at close of business on Dec. 19, 2014.
Thank you to all my readers.
Those of you who are long time readers know they I’ve long rallied for changes to the Fair Labor Standards Act. The law is overly complex, anachronistic, and nearly impossible for compliance by employers.
Last week, I read an article on politico.com arguing that the FLSA’s exemptions need to be rewritten to make it easier for employees to qualify for overtime pay. This is not the right solution to this country’s wage-hour problems. You don’t fix one problem by creating another, i.e., punishing small and midsize employers by requiring them to start paying groups of employees overtime en masse. What will be their solution to this newly created problem? Reverse engineering. They will look at each employee’s W-2 wages for the past years, and calculate the appropriate lower hourly wage (or salary) to play each newly overtimed employee that will result in the same annual W-2 figure with the time-and-a-half rolled in.
This is not a solution. It’s an administrative burden that will not put more money in workers’ pockets. The solution is to make FLSA compliance easier for employers by simplifying decades-old regulations.
There is one wage-hour change I can support. Pending in the Ohio legislature is a bill that would require retail employers to pay triple-time to employees who work on Thanksgiving. Dear readers, please do not shop on Thanksgiving. Retailers require employees to give up their holiday because we show up for sales like lemmings to the 25% off sticker. I understand why safety forces and medical workers need to give up their holidays. But the cashier at Target? He or she deserves the day of add much as I you and I do. So if we need a law to disincentive employment on these days, then so be it.
Gawker wants to know, “What’s the Grossest Thing You've Ever Done at Work?” Me? I very accidentally walked in on a very naked octogenarian. You? Share in the comments, or on Twitter with the hashtag #grossatwork.
Here’s the rest of what I read this week:
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Are you having a holiday party for your company? Are you planning on sharing the cheer by posting photos of said party on your corporate Facebook page or other social media? If so, don’t forget to have your employees sign authorizations before you post those photos.
Like many states, Ohio has a statute that protects an individual’s name, voice, signature, photograph, image, or likeness. This “right of publicity” prohibits one from using another’s persona for a commercial purpose without written consent.
It may be sufficient to have statement in your employee handbook advising employees that, from time to time, the company may post pictures of employees on the company’s website, Facebook page, etc., and employees who wish to opt out should advise HR in writing. The overly cautious employer, though, will want this to be an opt-in process, with employees providing specific written consent for the use of their likeness in photos.
Regardless, employers should do something to ensure that they are not infringing on employees’ right of publicity with photos of employer-sponsored events. Otherwise, your holiday lump of coal might come in the form of a lawsuit by a shy, and overly litigious, employee.