Leaves of Absence/FMLA Articles

DOL Regulations Clarify Key FMLA Provisions

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            The U.S. Department of Labor issued a set of revised regulations covering the Family and Medical Leave Act (“FMLA”), which go into effect January 16, 2009, and provide guidance on a number of key areas that employers have struggled with since the law’s enactment in 1993. While some of the major changes are covered below, the new regulations are available at: www.dol.gov/esa/whd/fmla/finalrule.pdf.

Reinstatement Rights of Injured Employees

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            Contrary to popular belief employees injured at work do not have an unqualified right to return to work, no matter how long it takes for recovery. Connecticut law allows an employer to terminate an employee injured on the job under the terms of a neutral leave of absence policy.  While section 31-290a of the Workers’ Compensation Act prohibits an employer from discharging or discriminating against an employee because of an on the job injury, this section has been interpreted as allowing the discharge of such an employee under a policy uniformly applied to both occupational and non-occupational absences.  

Production Bonuses May be Pro-rated for Time Spent on FMLA Leave

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            In an appellate case of first impression the Third Circuit Court of Appeals found that employers may pro-rate production bonuses for time missed by employees while on leaves covered by the Family and Medical Leave Act (“FMLA”). Sommer v. The Vanguard Group, 2006 U.S. App. LEXIS 21638 (3rd Cir. 2006). The court held that bonus programs rewarding performance that can only be achieved if at work may be pro-rated, while those rewarding the absence of some occurrence, like a perfect attendance bonus, may not be pro-rated.

Terminating Employees on Medical Leave May Trigger Emotional Distress Claims

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            The U.S. District Court for Connecticut found that an employee informed of his termination while on a medical leave of absence stated a cause of action for both intentional and negligent infliction of emotional distress. Storm v. ITW Insert Molded Products, 400 F. Supp. 2d 443 (D. Conn. 2005). In denying defendant’s motion to dismiss, the court found plaintiff sufficiently alleged extreme and outrageous behavior by the employer, and that the conduct occurred as part of the termination process.

Employer Has Burden to Justify Denial of Post-FMLA Job Reinstatement

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            In a case of first impression, the Connecticut Supreme Court clarified the framework for analyzing a claim of interference with an employee’s right to reinstatement under the Connecticut Family and Medical Leave Act. Cendant Corp. v. Comm. of Labor, 276 Conn. 16 (2005). The Court held that an employer is strictly liable for a failure to reinstate an employee following a leave; however, the employer may assert an affirmative defense that the employee would still have been terminated even if she had not taken the leave.


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