Sick With Flu? Workers Have Few Rights

I did an interview with WUSA 9 last night on employee rights when you get the flu. Here is a bit more detail on your rights if you are an immediate family member gets sick with the flu:

• FAMILY AND MEDICAL LEAVE ACT. If you and your employer are covered you have the right to up to 12 weeks of protected leave if your illness qualifies as a "serious health condition." A serious health condition is one the incapacitates you for more than three consecutive days and requires one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy). You may also be entitled to protected leave is you caring for a spouse, son, daughter, or parent with a "serious health condition."

• MARYLAND FLEXIBLE LEAVE ACT If you and your employer are covered you have the right to use accrued sick or vacation leave for yourself if you are sick or to care for a child, spouse, and parent.

• DISTRICT OF COLUMBIA FAMILY AND MEDICAL LEAVE ACT. If you and your employer are covered you have the right to up to 16 weeks of protected leave if your illness qualifies as a "serious health condition."

The above laws provide protected leave, i.e., your employer cannot retaliate against you or fire you for taking protected leave. Whether you and your employer qualify under the above laws can be a tricky issue and varies by jurisidiction.

Maryland Flexible Leave Act Likely to Be Amended

Last session the General Assembly passed the Maryland Flexible Leave Act. The Act requires employers with 15 or more employees that provide paid leave to allow the employee to use earned paid leave to care for the illness of an immediate family member (child, spouse, or parent). The Maryland Department of Labor has provided a synopsis here. Employers are prohibited from retaliating against individuals who take protected leave.

The Maryland Chamber of Commerce reports significant support to amend and clarify the Act by adding definitions. I hope to add a link to the proposed amendments when the bill is introduced.

Should I Stay or Should I Go? What to do when you are harassed at work.

Clients facing difficulties at work often ask me: "Should I just quit?" I often respond that there are two ways to look at the question.

1.The Legal Answer. Quitting will not usually help the employee who is considering taking legal action against his or her employer. It is better to consult an attorney, have that attorney file your claim, and endure while the legal process runs its course.

Quitting may cutoff any claim for back pay, unless your working conditions are so intolerable that you can prove a constructive discharge(discussed here)

Quitting may make it more difficult to collect unemployment benefits unless the employee can prove he or she quit for "good cause." Good cause is explained here at page 16.

Most anti-discrimination and wage and hour statutes have provisions that forbid employers from retaliating against an employee who complains in good faith that his or her employer is violating the law. As a result, an employee who make his or her complaint known to his or her employer has an added measure of legal protection. The United States Supreme Court recently addressed Title VII's anti-retaliation protections in the Burlington Northern case.


2.The Reality Check: If going to work is so bad that it is affecting your emotional health, you should consider quitting. You should weigh the potential legal advantages of sticking it out against the emotional toll of continuing to work at you current job. I often tell unhappy employees that ending your current employment relationship will not help your legal claim, but may be the best decision you ever make since it gives you the opportunity to find a better job.

No absolute right to reinstatement under the FMLA

In YASHENKO v. HARRAH'S NC CASINO CO., No. 05-1256, 4th Cir. (April 27, 2006) the Fourth Circuit decided today that an employee has no absolute right to reinstatement upon return from FMLA-qualified leave. The plaintiff claimed that Harrah's interfered with the exercise of his FMLA rights when, after he took his most recent leave, it refused to restore him to his previous employment position. Yashenko argued that a section of the Act granted him "an absolute entitlement to restoration."

Not so the Fourth Circuit held stating that the right to reinstatement is limited. Specifically, an employer can avoid liability under the FMLA if it can prove that it "would not have retained an employee had the employee not been on FMLA leave." Harrah's did just that -- entitling it to summary judgment.