UTU Bus News Digest - April, 2000

UTU Bus Department News Digest
Information of interest to transportation employees April, 2000

Mother's Emergency Room visit may be covered by FMLA

A fast-food restaurant worker in Texas who was fired for missing a shift while taking her child to the emergency room for a sudden ear infection may be covered by the Family and Medical leave Act because the infection gradually worsened and required surgery, a divided Eighth Circuit rules.

"FMLA's purpose is to help working men and women balance the conflicting demands of work and personal life," Judge Bright writes for the court. "The law requires courts to consider the seriousness of the afflicted individual's condition because the law was designed to prevent individuals like [plaintiff] Juanita Caldwell from having to choose between their livelihood and treatment for their own or their family members' serious health conditions."

Dissenting Judge Hansen says the one-day absence from work is not the type of absence the FMLA is intended to cover and should instead be covered by an employer's sick-leave policy. "I reject the court's suggestion that 'incapacity' under the FMLA may be defined by the sniffle standards imposed by a local day care center.

Seventh Circuit rules worker not protected under FMLA

An employee who gave advance notice that she would miss work to undergo surgery was not entitled to protected leave under the Family and Medical Leave Act because she failed to submit a medical certification by the employer's 15-day deadline, the Seventh Circuit rules. Affirming summary judgment for Dade Behring Inc., the appeals court decides the 15-day period began to run when Julie Rager received a certified letter requesting proof that she had a serious health condition and stating that she would be fired for absenteeism if she did not submit the documentation by a certain date.

Rager worked for Dade Behring, which is a provider of clinical diagnostic products and services, in Deerfield, Ill. She gave one week of notice that she was scheduled to have surgery to remove an infected gland. She submitted an FMLA leave request form before the surgery but did not provide any medical documentation. Her doctor told her on the day of surgery that she would need four weeks to convalesce. She did not comply with the employer's later requests that she submit documentation to avoid being fired.

Employee bears Burden of Proof in returning after FMLA Leave

The employee bears the burden of proof in establishing a right to reinstatement after returning from leave protected by the Family and Medical Leave Act, even when the employer argues that it would not have retained the employee had the employee not been on FMLA leave, the Seventh Circuit says. Judge Ripple says a jury instruction placing on the employer the burden of establishing that an employee would not have been retained in a departmental reorganization even if she had not been on FMLA leave was "not an accurate reflection of the statutory mandate."

The employee in this case claimed that her employer interfered with her rights under the FMLA and thus must initially demonstrate that she possessed a right under the statute, the court says. "When an employee alleges a deprivation of these substantive guarantees, the employee must demonstrate by a preponderance of the evidence only entitlement to the disputed leave. The issue of the employer's intent is immaterial," the court says.

Judge Evans dissents, arguing the court should have deferred to a Department of Labor regulation stating that an "employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration."