Michigan Man Takes Steps for the Right to Care for His Family

When a family member or loved one is sick and in pain, the first reaction of many is to drop everything and take care of them. This was certainly the case for Curtis Brown. When his wife was scared to go to the hospital alone to have a lump on her elbow examined, he took steps to ensure he could be there for her in her time of need. He went early to his job making paper and cardboard at mill owned by Rock-Tenn in order to complete his work in time to go to the hospital with his wife.

This was not the first time he had done something like this, Mr. Brown had been taking intermittent leave for years in order to take care of his wife due to recurrent episodes of distress and confusion coupled with chronic gastrointestinal issues. However, this was the last time Mr. Brown took such leave—at least with Rock-Tenn. When he went to leave, his employer demanded that he stay for the remainder of his appointed shift. Mr. Brown refused and was ultimately fired for insubordination.

Looking at this initially, your first reaction may be that Mr. Brown was in a tough situation but you have to work the shifts assigned to you.  However, federal law may offer Mr. Brown the protections to take work off to be with his wife. Thus, Mr. Brown brought a lawsuit against his former employer alleging violations of his rights under the Family and Medical Leave Act (FMLA)—a 1993 Act which requires certain employers to provide their employees with a certain amount of unpaid leave to take care of family members.

How Does the FMLA Work?

The FMLA requires employers to offer their employees at least 12 weeks of unpaid leave every year to take care of a family member. However, like all things in law, it’s not quite so simple as this.  The FMLA doesn’t apply to every employer, every employee, or even every illness.

In order to protect smaller employers from being overburdened by the requirements of the Act, the FMLA only applies to employers with more than 50 employees at a single location. Where this is the case, the employer must extend the family medical leave actprotections of the FMLA to all their workers who are employed within 75 miles of the place they have 50 or more workers.

Even if an employer has enough employees to be held to the requirements of the FMLA, an employee has to fulfill certain conditions before the employer must allow them FMLA leave.  Only employees who have worked for at least a year and at least about 25 hours per week for the last year qualify for the leave. What’s more, employees in the top 10% of pay within the 75-mile radius the employer covers are exempted from required coverage under the FMLA. There are also a few other exceptions to the Act such as elected officials.

Once all these ducks are in a row, and an employee is due protection under the FMLA, the question becomes what sort of situations require an employer to grant a request for unpaid FMLA leave. The FMLA requires leave for a number of things. However, the primary situations where it comes up are where an employee needs to care for a newly born, adopted, or fostered child, issues arising out of a family member’s military deployment, or to care for a family member’s—or recover from your own—serious illness.

As you might expect from a statute, the term serious illness is not left up to common sense interpretation. Instead, it is specifically defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.”  This means that you can’t get leave for check-ups and other routine medical care or for illnesses that come and go quickly like a common chest cold.

How Do You Ensure Your Rights Under the FMLA?

Even once you qualify for leave, you can’t just take it whenever you want, you have to ask your employer first. However, where the leave is qualified under the Act the employer has to grant it. Before taking leave it’s important that an employee notify their employer that they’re going to be taking FMLA leave and explain why, when, how often, and provide a doctor’s note or similar thing if your employer requires it. It’s also important to let your employer know if anything changes and, above all, that you plan to come back to work after your leave is over. When you can see the need for leave coming, the Act requires an employee to give this notice at least 30 days before they actually take leave.

Once you’re actually approved for leave, an employer can require you to use your paid leave—such as sick days—before starting in of your guaranteed 12 weeks per year of unpaid FMLA leave. However, once you’re on leave you have a number of legal protections that an employer must abide by. An employee must get the same health benefits they would get as if they were not on leave—although the employer is not required continue to provide life or disability benefits. When you return, your employer must reinstate all benefits and pay as well as give you back your old—or a comparable—position.

Where an employer takes action against an employee because they exercise their rights under the FMLA that can give rise to a retaliation claim against the employer. The Act also allows for employees to sue an employer for interfering with any of their rights under the FMLA in a type of lawsuit aptly named an interference suit.

State by State Differences

While the FMLA provides a minimum bar for protection across the country, many state have passed laws to expand the protection an employee would otherwise receive under the FMLA.

For example, Maine, Maryland, Minnesota, Oregon, Rhode Island, Vermont, Washington, and DC have all reduced the number of employees needed before an employer is required to provide employees the protections of the FMLA.  California, Connecticut, Hawaii, Maryland, New Jersey, Oregon, Rhode Island, Vermont, Wisconsin and DC have expanded the definition of a family member for FMLA protections within their states—primarily to include siblings, civil unions, domestic partners, same-sex partners, and in-laws.  In an even more substantial move California, New Jersey, Rhode Island, and New York all have passed laws requiring paid FMLA leave.

This is just a few of the state to state changes, there are several states which require employers to provide even more than the 12 weeks of leave necessitated by the FMLA. There are even a few states that have expanded the situations where you can take leave to include things like going to your kid’s school events.

Mr. Brown’s FMLA Case

Mr. Brown’s lawsuit started all the way back in 2013 and included both retaliation and interference claims under the FMLA. Just about a month ago, it finally moved past the summary judgment phase with a judge ruling in favor of Mr. Brown—allowing the case to be seen by a jury.

Rock-Tenn had long been arguing that the elbow “bump” Mr. Brown’s wife complained of was not a health condition covered by the FMLA because it did not involve “continuing treatment.” They also challenged the seriousness of the elbow bump as an injury. The court bought neither argument. Ms. Brown had seen a doctor several times for her elbow problems and ultimately the medical issue Mr. Brown was leaving for was providing emotional support due to ongoing anxiety issues. This was the actual cause behind his request for FMLA leave.

Mr. Brown’s case is far from over, but he will have his day in court. The idea that an employee could be put in a position where they have to choose between their family’s health and their job is a hard pill to swallow. That is why FMLA rights exist. Knowing your rights as an employee and your duties as an employer can help avoid the heartbreak of such a choice—or of a costly lawsuit.

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