Snider & Associates, LLC
104 Church Lane, Suite 100, Baltimore, MD 21208
(410) 653-9060 or 1-800-DISCRIMINATION

Courts clarify when "intermittent leave" qualifies for protection

The federal Family and Medical Leave Act allows workers up to 12 weeks a year of unpaid leave to take care of family or medical issues. The law permits a worker to take off time from work at different times, instead of continuously. This is known as "intermittent leave."

As a result, courts around the country have been asked to define when absences from work qualify under the FMLA.

Two recent court decisions limit when an employee"s time away from work qualifies as intermittent leave protected under federal law.

In one case, a federal trial court judge in Maine ruled that the FMLA does not protect chronic tardiness as intermittent leave even if a doctor later concludes the tardiness was due to a medical condition.

A worker was fired for chronic tardiness and absenteeism throughout her employment as a nurse technician.

Although the employer repeatedly told the woman it was important to arrive on time, she was late or absent 52 times in the first five months of employment. She told her supervisor that her chronic tardiness was due to fatigue and depression and that she believed she had lupus.

While doctors documented her chronic fatigue, they didn"t provide a definitive diagnosis and never told her that her symptoms prevented her from working.

After being fired, the woman sued, claiming her employer violated the FMLA by failing to tell her she could treat the time she was late as intermittent leave under the law.

But the court said the FMLA was not meant to protect chronic tardiness in and of itself.

In the other recent case, a federal appeals court ruled that holidays that fall during time taken off under the FMLA do


not automatically extend the leave.

In the case, a university employee requested intermittent leave to care for her ailing mother during two separate periods of three to four weeks each. The university approved her request, although it told her it would consider her to have resigned voluntarily if she didn"t return as scheduled.

During the leave period, she told her supervisor she planned to extend her leave by one day in light of an internal work holiday the university trustees had granted to employees.

Despite her supervisor"s insistence that she return as originally scheduled, the woman failed to do so. As a result, her supervisor concluded she had voluntarily resigned.

The employee sued, claiming the university miscalculated her leave period in violation of the FMLA. She argued the university should have extended her leave to account for three holidays that fell within the leave period, including the internal holiday.

But the federal appeals court in Massachusetts disagreed and sided with the university. The court said federal law states holidays that fall during leave do not extend the leave.


Dressing and undressing considered "work"

Putting on and taking off work-related clothing may constitute "work" under the federal Fair Labor Standards Act, according to a federal appeals court.

Poultry workers sued their employer claiming the law required they be paid for time spent "donning and doffing" safety and sanitary clothing, as well as the time spent washing work gear. The activity took between six minutes and 10 minutes and occurred six times per day for each employee. The gear included smocks, hairnets, gloves, ear plugs and safety glasses.

A jury had ruled in favor of the employer. But the federal appeals court covering New Jersey, Delaware and Pennsylvania reversed the verdict and ruled in favor of the employees.

The court said activities performed before and after work must be compensated as long as they are an integral and indispensable part of the principle activities of the work itself.

The court noted that the federal law doesn"t require workers to prove that


the safety gear was cumbersome, heavy or required concentration to put on and take off. What"s relevant, the court said, is if an employer requires employees to undertake an activity for the benefit of the employer.


Employee injured in fight with boss can get workers" compensation

An employee injured in an altercation with his employer is entitled to workers" compensation even though the injury didn"t directly result from a work-related activity, according to a recent court ruling.

A stir-fry cook at P.F. Chang"s, a Chinese bistro, injured his shoulder and pelvis when his supervisor pushed him down by the shoulders. At the time of the incident, he was the only Chinese employee and spoke little English.


He alleged he was constantly belittled and mocked over a two-month period by his supervisor.

The Arizona Court of Appeals said the man was entitled to workers" compensation benefits. The work environment brought the man and his supervisor together, creating the relations and conditions that resulted in the dispute and the man"s injuries, the court said.


Wrongful death claim can be brought despite arbitration clause

An employee may sign an arbitration agreement, but that doesn"t mean his family is required to go to arbitration on a wrongful death claim.

A steel worker signed an employment agreement that required arbitration on any claims he might have. The agreement also stated it applied to his beneficiaries. After he fell to his death at work, his


widow filed a wrongful death action on behalf of his beneficiaries.

The employer argued that under the employment agreement, the claim had to be arbitrated. But the Ohio Supreme Court disagreed, saying the employee could not sign away the rights of his family on claims that did not occur during his lifetime.


Injury on break is employee"s fault

Although an employer"s advertisement was displayed on the vehicle an employee was driving, the employer wasn"t responsible for injuries the employee caused in an accident while running an errand on his own time.

The accident victim, who filed suit, claimed the employer was responsible. The employer said it required employees


to remove the magnetic advertisements placed on employees" personal vehicles while they were not working. The employee who caused the accident didn"t do that.

The Illinois Appellate Court ruled the advertisement wasn"t important enough to make the employer responsible for the accident victim"s injuries.


Notice of discrimination timely despite error

Preserving rights under federal employment laws requires workers to meet certain filing deadlines with the Equal Employment Opportunity Commission. Failure to comply with the deadlines will torpedo a claim.

A recent case shows that a claim filed with the EEOC will be considered timely even if it contains errors.

In the case, a female city transit worker in Washington, D.C. alleged a co-worker sexually assaulted her. She immediately reported the incident to her supervisor. Her employer concluded, however, that she didn"t have enough evidence to support her claim.

She completed an EEOC questionnaire, but wrote the wrong date for the


incident. She later sued for gender discrimination under Title VII.

The employer said the inaccurate questionnaire made her claim untimely.

The federal appeals court for the District of Columbia rejected the employer"s argument, saying the employer knew about the woman"s claim shortly after the alleged sexual harassment occurred.

The court said it was mindful of Congress"s "careful calibration of Title VII"s procedures." But the employee satisfied the timely filing requirement by promptly pursuing her claim. Also, the employer didn"t dispute the date the incident occurred, the court noted.


Employee"s personal injury claim must go to arbitration

An employee must use arbitration as required in his employment contract for a personal injury sustained while he was working, and even though his employer retained the right to file a lawsuit in court against the employee.

The injured employee was working for a contractor that supplied workers for a refinery located in the Virgin Islands. He signed an agreement with his employer that said any claims he had against the employer must be arbitrated, including personal injury claims.

Arbitration is a proceeding to resolve legal disputes outside of the court



The employee was injured at the refinery and claimed his employer"s negligence was responsible for it. The refinery responded that the claim had to be resolved in arbitration.

The federal appeals court covering the U.S. Virgin Islands agreed with the employer.

The employer required employees to arbitrate claims against it, but reserved its own right to trial. That fact in and of itself did not make the contract invalid, the court ruled.


Employee required to work on Sabbath can"t sue for religion bias

A full-time U.S. Postal Service letter carrier was permitted time off on Saturdays to accommodate his Jewish faith, which observes the Sabbath on Saturdays.

This arrangement worked for 10 years. But when budget constraints prompted the U.S. Postal service branch in Ohio where the man worked to reduce staffing levels and require more carriers to work additional hours on Saturdays, other employees became unhappy with the man"s arrangement.

The accommodation was eliminated after union members voted to recommend its termination. The postmaster suggested to the man that he reserve some of his vacation time for Saturday absences. The man was also allowed


to use leave time and exchange days with other carriers.

The man sued, alleging that ending his Saturday accommodation violated his rights under federal law. He claimed that being forced to take days off from work without pay in order to avoid Saturday work reduced his pay and eventual pension.

But the federal appeals court covering Ohio ruled against the man, saying he had not been discharged or otherwise disciplined.

The court said more than loss of pay must occur before federal law can cover a claim of religious discrimination. The court noted the employer did not intend the Saturday work requirement to force the man to quit.


Asthmatic wins $1.5M in disability discrimination case

A Texas woman fired after her company refused to accommodate her violent asthma attacks by removing office air fresheners recently won $1.5 million in a disability discrimination suit against her former employers.

Linette Weller worked at Rogelio Sanchez State Prison in El Paso as a senior chemical dependency counselor. In 1999, her employer began to dole out hand-held aerosol air fresheners for use in the office.

Over the next two weeks, Weller"s asthma symptoms got progressively worse, culminating in a trip to the emergency room when the aerosol caused her bronchial tubes to swell and chest to close, making it nearly impossible for her to breathe.

After that attack, Weller"s employer accommodated her and removed the air fresheners from the work area. But less


than two years later, the company installed automatic air fresheners that were attached to the wall and timed to periodically release a puff of scented air.

Weller"s symptoms again took a turn for the worse and she suffered another attack less than a month after the air fresheners were installed.

She took a leave from her job until she was cleared to return by her doctors. However, her employer would not let her return without a signed assurance from her doctors that she would no longer be affected by the air fresheners. She was later fired.

After a three-day trial, the jury found that that the employer failed to provide a reasonable accommodation for Weller"s disability, causing her unnecessary hardship and failing to deal with her in good faith. The jury awarded her $1.5 million damages.

This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call our firm today.

The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.