ELG Law Group Employment Practices Update
 July 16, 2012

Two Medical Conditions Can Equal One FMLA Serious Health Condition

In Fries v. TRI Marketing Corporation, a telemarketer suffered from genital herpes and inflammation of the bladder wall. She missed work on a Friday because of alleged pain and frequent urination. On Sunday, she went to the emergency room, where her doctor attributed her urinary retention issue more to the herpes than to the bladder inflammation. While at the ER, Fries texted her supervisor that she was in the hospital and had a doctor's note supporting the need to miss work on Monday. Her supervisor texted back that if she missed work on Monday she would be fired. Fries was initially suspended for missing work on Monday and later terminated after she threatened to sue. She sued for FMLA interference and retaliation. The employer argued that she did not have a serious health condition, as defined by FMLA because neither of her conditions incapacitated for more than three days. The bladder inflammation caused her urinary issues on Friday and Saturday and her herpes caused her inability to urinate on Sunday and her Monday absence. The Court rejected the Company's analysis. Acknowledging that each of Fries' medical conditions alone may not have incapacitated her for three or more consecutive days, a trial court judge found that two conditions (which alone do not constitute a "serious health condition") can together rise to the required level where they are "temporally linked" and affect the "same organ system." On the retaliation charges, the judge also concluded that because the termination letter stated that Fries only was going to be suspended until she threatened to bring a lawsuit, a jury could find retaliation.

Prevention Strategies: Review your policies to ensure they are up to date. Then, train all managers and supervisors on the importance of strict compliance with leave laws and non-retaliation standards. Provide direction to front-line leaders on appropriate content for text messaging and email and to avoid hasty or "off the cuff’ communications. Never use language in a business record that states (or even implies) retaliatory motives.

Department of Fair Employment & Housing (DFEH) Has Far Reaching New
Powers

On June 28, 2012, Governor Brown signed a budget reconciliation bill that included significant amendments to the FEHA. It disbands the Fair Employment and Housing Commission (FEHC) and expands specified powers of the DFEH related to complaints, mediations and prosecutions.

Effective January 1, 2013, it eliminates a specified cap of actual damages under FEHA, and requires certain actions be brought in court by civil action, rather than by "administrative accusations" previously heard by the FEHC. So, instead of administrative awards in the $100,000 to $200,000 range, FEHA charges pursued by the DFEH could presumably result in much higher damages imposed by jurors. A Fair Employment & Housing Enforcement and Litigation Fund in the State Treasury will be administered by the DFEH to deposit of attorneys’ fees and costs awarded to the DFEH. Such awards will likely dwarf the administrative fines previously awarded by the FEHC.

There are several other pending California employment law bills for this term including:

    AB 2039 which has passed the Assembly and cleared the first of two Senate Committees will expand the circumstances under which an employee is entitled to protected leave to care for a seriously ill "close family member" under the California Family Rights Act (CFRA). Major impact: (1) eliminates age and dependency from the definition of "child," thereby permitting an employee to take job-protected leave to care for his or her independent adult child suffering from a serious health condition; (2) expands the definition of "parent" to include an employee’s parent-in-law; and (3) permitting an employee to also take leave to care for a seriously ill grandparent, sibling, grandchild, or domestic partner. This is broader than FMLA definitions, the leave would not run concurrently with FMLA; and thus, an employee could use 12 weeks of CFRA to care for the serious medical condition of a parent-in-law, and then take another 12-week leave under FMLA for an entirely separate triggering event.

    AB 1999, has also passed the Assembly and cleared the first of two Senate Committees. It will expand FEHA by including "family caregiver status" as a basis upon which an employer cannot discriminate with regard to the individual’s right to seek, obtain and hold employment. The bill defines "family caregiver status" as an individual who provides medical or supervisory care to a family member. Unlike the leave statute, it doesn’t require a "serious health condition," and FEHA applies to employers with as few as five employees, who aren’t covered by the CFRA.

    AB 1450 would prohibit discrimination against unemployed jobseekers by employers or employment agencies The bill makes it unlawful for an employer to: (1) knowingly or intentionally refuse to consider for employment or refuse to offer employment to an individual because of the individual’s status as unemployed; (2) publish an advertisement or announcement for any job that includes provisions pertaining to an individual’s status as unemployed; or (3) direct or request that an employment agency take an individual’s status as unemployed into account in screening or referring applicants for employment. There are hefty civil penalties for violations. The bill has passed the Assembly and on 7/3/12, the Senate Judiciary Committee voted a "do pass" recommendation.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for
business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.

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