Leave Law Administration: Adventures in Neverland Joseph A. Ernst, - - PDF document

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Leave Law Administration: Adventures in Neverland

Joseph A. Ernst, Esq. Kendra K. Kawai, Esq. Jennifer L. Gitter , Esq. Rachel K. H. Miyashiro

If you travel towards the second star to the right and straight on ‘till morning . . . you will find a surprising amount

• f HR issues.
• Mr. Darling Has a Migraine
• Mr. Darling has worked as a clerk at a shipping company, Barrie & Co., for several
• years. Mr. Darling suffers periodically from migraine headaches, which can last

up to three days. One morning before work, Nana, his children’s nurse, is chasing the children (Wendy, John, and Michael) around the house. The children have great fun and scream and laugh. Mr. Darling, who was already stressed because he had gotten into an argument with his supervisor the day before, feels the beginning of a migraine coming on. Mr. Darling sends a letter to his supervisor saying, “It may be a good idea for me to take FMLA.” Mr. Darling then does not report to work.

• Mr. Darling’s supervisor receives the letter

, but is angry

• Mr. Darling did not show up to work without notice. The

supervisor wants to discipline Mr. Darling for failing to show up for his shift, and he goes to the Barrie & Co.’s HR Manager for approval.

• 1. What should the HR Manager tell the supervisor?

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Is Mr. Darling required to take paid leave?

Barrie & Co. provides its employees with two weeks of paid time off (“PTO”) each year. The company requires its employees on FMLA leave to first use up any available PTO, after which any additional leave will be unpaid. Barrie & Co.’s HR Manager informs Mr. Darling, who has not yet used any of his available PTO for the year , that he will be paid during his leave and his available days of PTO will be reduced. Mr. Darling is upset because he had planned to use his PTO to take a vacation with his family later in the year , and tells the HR Manager he does not want to take paid leave. The HR Manager tells Mr. Darling he has no choice. Mr. Darling replies that if he has to take paid leave, then he expects to have a full 12 weeks of FMLA leave available for use later in the year.

• 2. Is Barrie & Co. allowed to require Mr. Darling to use his available PTO when he

has requested FMLA leave?

• 3. If so, does the requirement to use his available PTO extend the starting date of

the leave calculation?

Wendy, John, and Michael fly to Neverland . . .

Running a pirate ship is harder than it looks . . .

Even though it has been many years since the Crocodile snacked on Captain Hook’s hand, Hook remains terrified the Crocodile will return. Hook decides he wants to hire a pirate whose only job is to watch the water around the ship at night for signs

• f the Crocodile. Mr. Smee, Hook’s second-in-command and HR Manager, hired Bill

Jukes as the Night Watchman. On several occasions during his first six months on the job, Bill showed up to work late or not at all without notifying Mr. Smee beforehand. Hook is understandably upset, and instructed Mr. Smee to deal with the problem. Mr. Smee meets with Bill to issue him a written warning regarding his absences. During this meeting, Bill tells Mr. Smee for the first time he had been “taking FMLA for his sleeping disorder.”

• 4. Are Bill’s absences protected leave under the FMLA?
• 5. Should Mr. Smee issue Bill the written warning?
• 6. Does Mr. Smee have any obligations under the ADA?

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After his conversation with Mr. Smee, Bill’s attendance improves and he completes his first year of employment on Captain Hook’s pirate ship without further incident. A day after his one-year anniversary, Bill informs Mr. Smee he will need to take periodic FMLA leave related to his sleeping disorder. Mr. Smee, who is suspicious given Bill’s improved attendance over the last several months, provides Bill a written Rights and Responsibilities Notice which includes the requirement Bill provide a medical certification. Bill provides Mr. Smee a medical certification fifteen days later, but prior to providing the medical certification is absent for work twice. Bill does not notify Mr. Smee prior to his absences.

• 7. Mr. Smee wants to discipline Bill for failing to comply with Captain Hook’s

attendance policies. Should he? The medical certification Bill provided only states Bill suffers from a “sleep disorder,” and does not indicate how often Bill will need to take leave or how long he will be

• incapacitated. The medical certification is signed by an Advanced Practice Nurse.
• 8. Is Bill’s medical certification complete and sufficient? Is Mr. Smee entitled to

demand a more detailed medical certification? Bill finally provides Mr. Smee with a complete and sufficient medical certification, which indicates he has hypersomnia (a sleep disorder characterized by excessive, involuntary, and constant sleepiness, with symptoms including extended sleep episodes of up to 12 hours a night and difficulty waking up, even with an alarm clock). The medical certification explains Bill cannot provide advance warning of when he will not be to work

• n time or at all, because Bill is not able to predict when his hypersomnia

will cause him to sleep through his alarm.

• Mr. Smee doesn’t know what to do with Bill. The medical

certification indicates Bill cannot be depended on to reliably show up to work on time or at all, and Bill’s job of Night Watchman cannot be performed if Bill is not present at work throughout the night.

• 9. What are Mr. Smee’s obligations under the FMLA and ADA?

Tinker Bell Injures Her Wings

Tinker Bell, like all fairies, is employed by Queen Mab, and is in charge of delivering fairy mail. One day after work, Tinker Bell isn’t watching where she’s flying and runs into a tree. Her wings are injured and her doctor says she will not be able to fly for three months. Tinker Bell requests a medical leave of absence for three months, which Queen Mab grants. While she is out on leave, Tinker Bell sees an advertisement for a job on Captain Hook’s pirate ship for a bookkeeper. Wanting to make extra money, Tinker Bell applies for and is hired for that position. Gary, who has taken over fairy mail delivery while Tinker Bell is on leave, sees Tinker Bell working on Captain Hook’s ship while he is making his daily deliveries. Gary tells Queen Mab, who hates pirates and wants to fire Tinker Bell.

• 10. Under the FMLA and ADA, can Queen Mab fire Tinker Bell?

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Will Tinker Bell Keep Her Job?

While delivering fairy mail during Tinker Bell’s leave, Gary discovers Tinker Bell had made several serious mail delivery errors prior to her leave. For example, several fairies complained to Gary that Tinker Bell delivered their private correspondence to the wrong recipients. Other fairies told Gary Tinker Bell was always late to deliver their mail, and was very rude. Gary reported these complaints to Queen Mab. Unbeknownst to Gary, Tinker Bell was issued a final warning for committing these very same types of infractions a few days before she ran into the tree. Queen Mab decides she wants to fire Tinker Bell, and plans to meet with Tinker Bell when she returns to work to do just that. After Queen Mab has made her decision, but before Tinker Bell is scheduled to return to work, Tinker Bell tells Queen Mab her wings are much improved but she will need to only work half- days for another month.

• 11. What should Queen Mab do?

Wendy and the Lost Boys

When Wendy came to Neverland, she decided she would be a mother to the Lost Boys, who had no mother of their

• wn. Wendy never adopted the Lost Boys and is not their

legal guardian, but she makes sure they have clothes and food and cares for them when they are sick. In an effort to mend his relationship with Peter Pan, Captain Hook hires Wendy as swabbie. Tootles, one of the Lost Boys, suffers from severe asthma and has to go to a doctor’s appointment. Wendy requests leave to take Tootles to the doctor.

• 12. What are Captain Hook’s obligations under the

FMLA? The HFLL?

Michael Tries to Fly

One morning, Wendy’s brother Michael decides he wants to fly like Tinker Bell, but Tinker Bell isn’t around to sprinkle fairy dust. Wanting to try anyway, Michael climbs to the top of a tree and jumps off. Not being able to fly, Michael falls to the ground and breaks his arm. Wendy tells Captain Hook she needs to take the day off to take Michael to the hospital.

• 13. Is Wendy entitled to FMLA leave for to care for

her brother? Is she entitled to leave under the HFLL?

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Peter Pan’s Seafood Café

Peter Pan decides to open a seafood café for the mermaids living in Neverland’s lagoon. He hires Doris, one of the mermaids, to catch fish, lobster, crabs, shrimp, and oysters to sell at the café. Doris suffers from severe depression because she cannot walk on land. Doris periodically requests time

• ff from work when she has a depressive episode, but

has not seen a doctor for her condition in two years.

• 14. Is Doris entitled to FMLA leave? Intermittent

leave under the ADA?

Doris the Webmaster

Doris begins seeing a doctor to treat her depression and her condition improves. Peter Pan wants to begin selling seafood to the other denizens of Neverland, and needs someone to make a website to advertise the café and set up a system for delivery orders. Peter anticipates a significant increase in sales once the website is in

• place. Doris expresses interest, especially because making the website will allow her

to spend more time out of the water. Peter promotes Doris to Webmaster, and hires a different mermaid to catch seafood. As Doris works on the website, her depression becomes worse because she is spending so much time with people who can walk on land, which she can never do. Doris requests, and is granted, intermittent leave to seek treatment during severe depressive episodes. Over the next several months, Doris exhausts her FMLA leave, and Doris’ doctor informs Peter Doris will need to take more leave in the coming

• months. Doris is the only employee working on the website, and because of her

absences, Peter has had to postpone the website launch. Doris tells Peter she can come to work more regularly if she can work half-days, so she can receive more regular treatment. The website will be delayed further if Doris is not able to work on it full-time.

• 15. Would it be an undue hardship for Peter Pan to continue to accommodate

Doris’ condition?

Tinker Bell the Café Cashier

Tinker Bell, who has been fired by Queen Mab, now works as the cashier at Peter Pan’s seafood café. Even though Tinker Bell is rude to customers and sometimes gets their orders wrong, she has become a staple at the café and customers seem to enjoy her unique personality. One morning, Tinker Bell learns her grandfather, Burt Bell, has had a heart attack.

• 16. Is Tinker Bell entitled to take FMLA leave to care

for her grandfather? HFLL leave?

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What should Peter do?

Gertie, the mermaid Peter Pan hired to replace Doris as his seafood catcher, weighs over 300 pounds. While initially Gertie was able to timely catch and deliver seafood for the café, after a year of work, Gertie begins to suffer tail strain from all the swimming she’s required to do for her job. In September 2016, Gertie tells Peter she has been diagnosed with morbid obesity. Peter approved her FMLA leave, and after she came back from leave in December 2016, Gertie was placed in the same position at the same pay rate. In May 2017, Gertie informs Peter Pan she will be undergoing bariatric surgery in November. In June 2017, Gertie is about to go on vacation and wants to leave work early. Instead of searching the lagoon for fresh seafood, she collects dead fish that have washed up on shore. Peter wants to meet with Gertie after she comes back from vacation and suspend her for a week without pay pursuant to his normal disciplinary policy.

• 17. Is Peter Pan at risk for a FMLA interference, disability discrimination, or a retaliation claim if he

disciplines Gertie? If so, what should he do to mitigate that risk?

• 18. Is morbid obesity a disability under the ADA?

Mahalo!

Joseph A. Ernst, Esq. (jae@Torkildson.com) Kendra K. Kawai, Esq. (kkawai@Torkildson.com) Jennifer L. Gitter , Esq. (jlg@Torkildson.com) Rachel K. H. Miyashiro (rkm@Torkildson.com)