A Detroit nurse out on Family and Medical Leave Act (FMLA) leave for a back and leg injury was fired after Facebook posts showed her vacationing in Mexico. Her doctor certified the need for her leave due to substantial lifting and mobility restrictions. But several Facebook posts showed the nurse in Mexico riding in a boat; lying on a bed holding up two bottles of beer.

She also posted other details about her life that seemed inconsistent with her leave, including pictures of herself holding her grandchildren while standing (one in each arm), details about trips to Home Depot, “watching” the grandchildren and taking online classes.

A recent case from a federal district court in Ohio highlights what can happen if a manager diverges from objectively processing a Family and Medical Leave Act (FMLA) request and, instead, makes comments on the need for the leave. 

The employee claims she was terminated in retaliation for taking FMLA leave. She took leave for a hysterectomy and then while on leave discovered her fiancé/domestic partner had cancer. Her evidence that the company made its decision for unlawful reasons included:

The California Assembly passed a bill that would create a mandated leave benefit different from federal law. AB 2039 (Swanson; D-Alameda) significantly expands the type of individuals or circumstances under which employees can take a 12-week, protected leave of absence under the California Family Rights Act (CFRA).

Current Law
Currently, CFRA requires an employer with 50 or more employees to allow an employee who worked at least 1,250 hours to take up to 12 weeks of leave in a 12-month period for his/her own serious medical condition, for the birth or placement of a child, or to care for the serious medical condition of a child, (under 18 years of age or adult dependent), spouse, or parent.

The current definition of “parent” includes step-parents as well as individuals who stand in place of a parent, “in loco parentis,” to the child. 

Expansion of CFRA
AB 2039 seeks to expand CFRA by allowing an employee a protected leave to care for adult children, parents-in-law, grandparents and siblings.

Given that the individuals proposed by AB 2039 are not covered by the federal Family and Medical Leave Act (FMLA), an employee could use his/her 12 weeks of CFRA to care for the serious medical condition of a parent-in-law, then take another 12-week leave under FMLA to care for the medical condition for his/her spouse, child or parent.

Leave Already Protected
The new burden that AB 2039 creates is unnecessary. The proposed category of individuals that AB 2039 seeks to include under the protections of CFRA is generally already protected. A grandparent or step-parent who stands in loco parentis to a child, can already take a protected leave of absence under CFRA to care for that child, and vice versa. There is no need to create another exception for the parent-in-law, daughter in-law, or son-in law to also be able to take leave. 

A bill that creates a California-mandated leave benefit that differs from federal law will be considered by the Assembly Labor and Employment Committee on March 28, 2012.

AB 2039 would significantly expands the type of individuals or circumstances under which employees can take a 12-week, protected leave of absence under California’s Family Rights Act (CFRA) and creates an even further disconnect with the federal Family and Medical Leave Act (FMLA).

Expands California Law
Currently, CFRA requires an employer with 50 or more employees to allow an employee who worked at least 1,250 hours to take up to 12 weeks of leave in a 12-month period for: