Archive for the 'Health Care' Category

Can a Miscarriage Be a Wrongful Death Claim?

A recent decision from the Alabama Supreme Court allows a woman to proceed forward with a wrongful death suit against her obstetrician after suffering a miscarriage.  While the decision has rocked a few boats, the Court only affirmed existing laws that allow a person to sue for the wrongful death of an unborn child.

Miscarriage Wrongful DeathLet’s Check the Facts

Two days after finding out she was pregnant, Kimberly Stinnett experienced abdominal cramping and fever.  After an evaluation that included ultrasound, an obstetrician determined that Stinnett, based on the findings from the evaluation and Stinnett’s prior medical history, was experiencing an ectopic pregnancy.  An ectopic pregnancy occurs when a fertilized egg attaches itself in a place other than inside the uterus, which makes it impossible for a fetus to develop.

The obstetrician performed a dilation and curettage, commonly referred to as a “D&C”, which is a surgical procedure used to determine whether a pregnancy is intrauterine (within the uterus) or ectopic. Stinnett testified that the obstetrician told her, as a result of that surgical procedure, the pregnancy wasn’t ectopic, but that she believed a miscarriage had taken place.  The obstetrician, however, testified that she still had a strong suspicion that the pregnancy was ectopic and therefore ordered a drug commonly used to treat ectopic pregnancy.  The drug is intended to cause the end of pregnancy and was administered to Stinnett.

Stinnett attended a follow up appointment, in which she saw her original doctor.  A follow-up ultrasound showed that Stinnett was having a failing intrauterine pregnancy, possibly as a result of the drug the previous obstetrician had given her.  Several weeks later, Stinnett suffered a miscarriage.

Stinnett brought suit against the obstetrician and claimed:

  • Medical negligence for performing the D&C and administering the drug,
  • That because her pregnancy was not ectopic, the D&C should not have been performed nor should the drug should have been administered, and
  • That the obstetrician’s actions violated the applicable standards of care and proximately caused the loss of her baby.

In addition to her medical malpractice claims, Stinnett claimed wrongful death of her unborn fetus under Alabama’s wrongful death of a minor statute.  The personal injury claims stemming from the medical malpractice suit were allowed to go forward, but the lower court dismissed the wrongful death portion of the suit.  Stinnett appealed.

Why Did the Alabama Supreme Court Allow the Wrongful Death Claim to Move Forward?

Among other arguments, the obstetrician’s main argument rested on the idea that the wrongful death of a minor statute didn’t apply to her due to an exemption within another Alabama statute limiting criminal liability for licensed physicians who, through mistake or unintentional error, caused the death of a previable fetus.  The argument rested on the idea that if criminal liability was exempted, so too should civil liability.

The lower court agreed, but the Alabama Supreme Court ruled otherwise, stating, “[I]t simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act”.  The high court found doing so would, essentially, defeat the purpose (to prevent homicides) of allowing wrongful-death claims based on negligence in the first place.

The court remanded the wrongful death claim back down to the lower court, which means Stinnett has a chance to argue it in front of a jury.

Will She Win?

This case can appear a bit convoluted because it involves both wrongful death, as well as medical malpractice, but they essentially coincide with each other.  Wrongful death suits are brought when a person dies due to the negligence or misconduct of another.  In order to bring a successful wrongful death cause of action, Stinnett will need to prove:

  • The death of a human being,
  • Was caused by the obstetrician’s negligence (or intent to cause harm), and
  • That Stinnett is suffering monetary injury as a result of the death of her fetus (think losing future income from a spouse).

Alabama law allows wrongful death suits on behalf of previable fetuses, so Stinnett will have no problem proving the first element; it’s the other two elements that will be harder to prove.

Medical malpractice is one circumstance a plaintiff can use to prove a wrongful death claim.  If Stinnett can prove that the obstetrician acted negligently in a way that another competent obstetrician in similar circumstances would not have acted, then she’d have a good argument for medical malpractice.

Remember when I said Stinnett filed suit for medical negligence and wrongful death?  Even though the wrongful death suit was originally dismissed, the personal injury claims proceeded forward and a jury found in favor of the obstetrician.  What does that mean?  That the doctor wasn’t liable, which implies she followed the appropriate standard of care.  If that’s the case, then Stinnett won’t have much luck proving a wrongful death claim.

The Alabama Supreme Court noted in their decision that it wasn’t clear whether the jury’s decision rested on the obstetrician’s standard of care or whether it rested on the theory that Stinnett didn’t suffer any damages.  For those reasons, Stinnett has the option to proceed forward and, if she chooses to, she’ll need to prove both negligence with respect to the standard of care and that she suffered monetary injury.

Can Marijuana Businesses Survive the Trump Administration?

One of the most notable trends of the most recent election was the explosion of laws legalizing recreational and medical marijuana across the nation. In fact, while only 8 states currently allow recreational use, the majority of states have legalized the use of marijuana in one form or another. This explosion has caused a chain reaction, a matching eruption of businesses prepared to sell marijuana products wherever it is legal.

One of the largest of these companies is Dixie Brands, an enormous Colorado-based business. Dixie Brands, founded in 2010, currently has branches operating in Arizona, Colorado, California in Nevada. They have in the news recently for their desire to spread nationwide with planned expansions to Maryland, Oregon, and Washington.

Marijuana Business

However, operating and expanding as an operation in the business of selling a product that is federally illegal is understandably extremely complicated. Not only does each state have its own notably different set of laws on how a business must operate but federal law bars marijuana companies from a number of things most businesses would consider necessary to operate. In fact, the majority of the growth of the industry is predicated off the hands off approach of the federal government under the Obama administration.

Marijuana Businesses Under President Obama

In August of 2013, the Obama administration issued a memo stating that it would not interfere with legal cannabis business so long as they operated in states with fully fleshed out regulatory regimes for such businesses such as Colorado. In December 2014, President Obama signed a bill into effect which limited how the Justice Department could stop states from putting their own rules into effect when it comes to marijuana.  In a recent interview, President Obama went so far as to say that he believes that marijuana should be treated as a health issue in same vein as cigarettes and alcohol. He went out of his way in the same interview to note that polls show that the majority of people who voted for President-elect Trump feel the same way.

What They Might Face Under President Trump

These comments come after Trump has picked Sen. Jeff Sessions as his top choice for U.S. Attorney General–a particularly controversial pick.  Senator Sessions was nominated for a position as a federal judge by President Reagan in 1986. However, a Republican led Senate Judiciary Committee refused to appoint him after a number of racist comments and opinions came to light. Senator Sessions referred to the NAACP as “un-American,” repeatedly called the African-American Assistant United States Attorney Thomas Figures “boy,” and–perhaps most relevant for the state of marijuana law across the country–said that he thought the KKK were good people “until I learned they smoked pot.” While President-elect Trump has previously supported a hands-off approach to marijuana, his pick of Senator Sessions for U.S. Attorney General certainly points in a different direction–much to the chagrin of companies like Dixie Brands.  Senator Sessions is, as you can probably tell from his statements about the KKK, extremely outspoken in his opposition towards marijuana as a whole. Senator Sessions has stated that “one of [President Obama’s] great failures …is his lax treatment and comments around marijuana.”  He has been quoted as saying “We need grownups in Washington to say, ‘Marijuana is not the kind of thing to be legalized, it ought not to be minimized, and that it’s a real danger.'” He has even gone so far as to say “good people don’t smoke marijuana.”

All of this points to a potential change in stance from the incoming administration; the kind of change in stance that could be catastrophic for a business like Dixie Brands and the entire industry they belong to. So what exactly are the legal obstacles currently facing businesses based around marijuana products and how can a firmer line on marijuana make things even worse for these businesses?

The Legal Roadblocks of Selling Legalized Marijuana

First and foremost, the obvious elephant in the room.  Marijuana is federally illegal. Federal law supersedes state law when the two conflict. Thus, so long as marijuana remains criminal at the federal level the entire business could come crashing down in a matter of months or weeks with just a few changes to enforcement and federal laws. Supreme Court cases have shown that even personal use or cultivation of marijuana within a single state has sufficient impact on the nation as a whole to allow for enforcement of federal laws despite contrary state law. The bill signed by President Obama protecting such state laws from interference could be easily overturned by a conservative Congress with the mind to do it. If the choice of Senator Sessions as U.S. Attorney General signals an administration in line with his way of thinking, action such as this may well be in our future.

So, to say that the marijuana business is on shaky ground is a bit of an understatement. However, businesses such as Dixie Brands are used to operating on shaky grounds. The nature of their business has always involved some level of legal headaches in areas such as intellectual property, forming binding contracts and advertising. However, there are some legal issues that are even more fundamentally problematic for companies selling marijuana products.

Legal Transportation of Marijuana

One of the biggest of these headaches is that federal law makes it illegal to transport marijuana across state lines–interstate commerce is generally the realm of the federal government and the federal government says marijuana is illegal. The federal government can even prosecute people transporting marijuana from one legal state to another. The penalties for a violation of these rules are hefty–up to five years in prison or fines of up to $250,000.

This is especially relevant now that the entire block of states along the west coast all have legalized marijuana. In a normal franchise, standardizing providers and shipping equivalent quality goods to all your branches is standard practice.  However, this is illegal for marijuana companies and requires these companies to find a different legal provider of marijuana in every state they operate in. While some states have made it clear that enforcing these laws at their borders is not high on their priority list for single persons, this doesn’t necessarily apply for a larger business shipping large quantities and doesn’t prevent federal operatives from intervening.

What About Banking for Marijuana Businesses?

Another common issue facing businesses selling marijuana products is banking.  The fact that marijuana is, once again, illegal at a federal level has made most banks very hesitant to accept any money from a marijuana-related business. The problem is that this money is essentially earned through committing a federal crime and banks are fearful they may lose their required FDIC and NCUA insurance as both of these are provided by the federal government. Even worse, by working with a business like Dixie Brands a bank could face a lawsuit brought by the federal government.

Back in February of 2014, a division of the U.S. Department of the Treasury known as the Financial Crimes Enforcement Network (FinCEN) has created guidelines under which a bank may safely work with a marijuana-related company. These rules made it so that banks could work with companies selling marijuana so long as they file frequent Suspicious Activity Reports proving that the people they work with aren’t committing fraud or laundering money. However, while the rules made it technically legal to work with a company marijuana products, they also make it so expensive and time consuming to do so that no bank actually chooses to take FinCEN up on the offer. What’s more, these guidelines are not actually binding law but merely recommendations. This means that a change in position from the federal government, such as the one that looks to be on the horizon, would leave any bank following the FinCEN guidelines hung out to dry in a potential legal crackdown.

This issue has led to two things.  First, the marijuana industry is primarily a cash industry with all the problems that brings with it.  The interstate nature of credit cards, electronic payments, electronic transfers, PayPal and similar services tender all these payment methods unavailable to marijuana-related businesses. There are stories of owners of marijuana-related businesses coming to pay their taxes with sacks and sacks of cash like a Scrooge McDuck cartoon.  Second,  states have been forced to try and design their own internal banking services to help regulate the businesses they seek to tax.  Some of these, such as the newest regulations out of California, will only be taking effect later this year.

Is This the End of Expanding Marijuana-Related Businesses?

There is, unquestionably, an enormous amount of tax revenue to be made and jobs that could be created through legalized and regulated marijuana in the U.S.  However, the stance of those the incoming administration has chosen to represent them is not a friendly one to legalization.  There are certainly arguments in favor of this side of the argument as well–difficulty of enforcement, difficulty in proving current intoxication, etc.  However, as it stands the public opinions of the incoming Trump administration are incongruent.  President-elect Trump himself has been publically supportive of the growing marijuana industry.  The man he has chosen to weigh in most influentially on the current laws of the federal government, however, has a diametrically opposed position.   The marijuana industry is, and has been, an incredibly profitable house of cards–we’ll have to wait and see if the Trump administration chooses to blow it over.

Trump Presidency Promise: Repeal Obamacare in 2017

One of the main platforms President-elect Donald Trump ran on during the election was healthcare reform. Repeal Obamacare. “Great health care at lower costs.” That’s what we’ve heard over and over again. Since the election, Trump seems to be singing a different tune now, saying there are parts of Obamacare he plans to keep.

Which parts though? Senate Majority leader Mitch McConnell asserts, “The Obamacare repeal resolution will be the first item up in the new year.” With a lot of determination coming from the GOP, we haven’t really seen any indication of what a new plan might look like and how it will affect healthcare for millions of Americans. 

How Do They Plan to Do It?

Repeal and delay through budget reconciliation. The GOP has been very public about their plans to repeal and delay the Affordable Care Act’s funding using this process. How does it work, though?

Budget reconciliation allows for expedited consideration of certain tax, spending, and debt limit legislation. The Senate could introduce new legislation regarding these tax, spending, and debt limits that relate to Obamacare without being subject to filibuster by the Democrats and, because the GOP controls the Senate, the new legislation would pass by a majority vote.

obamacare repeal 2017In other words, if it impacts federal spending, the GOP can pick and choose which parts of Obamacare they don’t like and thus block the spending. This is their way of repealing the parts they hate without throwing the whole thing out altogether.

It’s not necessarily that simple, though. Budget reconciliation requires forming a budget resolution, which is typically a lengthy back-and-forth process that can take months to come up with a final product. Nonetheless, if the budget reconciliation is accomplished, money would likely continue to flow through for Obamacare for at least a few years, giving the GOP time to fill in the holes and craft a new system.

Will It Work?

A promise to reduce healthcare costs sounds great, but how is this going to be accomplished? At the end of the day, it doesn’t really matter how Congress plans to repeal the Affordable Care Act. What matters is how it’s going to impact the nation. Cost is important, but so is quality.

According to a report from the Urban Institute, under this reconciliation process, the change could eliminate Medicaid expansion, eliminate the federal financial assistance for Marketplace coverage, and eliminate the individual and employer mandates. The Urban Institute predicts this process will cause 4 million people to lose insurance in the first year alone and, by 2019, the already high number of 28.9 million Americans without insurance will increase to 58.7 million. This is a 103% increase. This is just the tip of the iceberg and will only get worse if Congress doesn’t come up with a replacement quickly.

Since it doesn’t appear the GOP has any agreed upon alternative plans for how they’re going to better Obamacare, the major concern floating around with this repeal and delay plan is that it will create a frenzy within the insurance market during the transition period.

Although a direct link is widely debated, some believe those with insurance are healthier and less likely to die prematurely. Does this mean less healthcare creates an unhealthier America? Will this create a spike in insurance rates? It’s definitely a likely outcome that could mean Americans won’t be looking at lower health care costs anytime soon. 

Obama Signs New Law That May Make It Harder to Repeal

President Obama recently signed the 21st Century Cures Act into law, which many are regarding as a last ditch effort to sway the opinions of some proponents in the hopes of keeping Obamacare in place.

Certainly not the primary target of the Act, as the majority of the bill is focused on medical research funding, improvements to mental health and substance abuse care, streamlined regulations for drugs and medical devices, and some changes to Medicare and Medicaid payments, but there’s a small portion of the bill that focuses on a positive change for small businesses.

The relevant portion of the Act essentially allows small businesses to use Health Reimbursement Arrangements (HRA) to compensate employees who buy their own insurance. Companies with fewer than 50 employees can reimburse those employees for purchasing individual health insurance as if the company were directly paying the premiums on a group health policy. Employees won’t have to pay taxes on the company’s premium contribution and the company won’t owe any payroll taxes on the reimbursements either.

Eggs Benedict Arnold: Sofia Vegara Sued by Her Own Frozen Embryos

Modern Family star Sofia Vegara has been involved in a nightmare of a lawsuit over custody of frozen embryos since 2013, with the lawsuit originally brought in California by Ms. Vegara’s ex-fiance Nick Loeb. In a bizarre twist on the case, earlier this month Loeb brought a right-to-live lawsuit on the same grounds as his California lawsuit in Louisiana. However, the real bizarre twist is that it isn’t Loeb who’s bringing the lawsuit.  Instead, in a first of its kind case, the lawsuit is being brought with the frozen embryos themselves as plaintiffs.  An embryo is, despite the pun in the title, distinct from an egg in that it has been fertilized.

Loeb has decided to name the embryos Emma and Isabella for purposes of their lawsuit.  The suit claims that the embryos are seeking “the right to be transferred to a uterus so they can be born and claim an inheritance” and asks the court to force Vegara to sell custody of the embryos to Loeb. It also, probably not coincidentally, came barely a week before a judge in California ruled on a motion for summary judgment and to sanction Mr. Loeb in a nearly identical case—motions that led Loeb to outright drop his case in California.

It’s also no coincidence that Loeb has chosen Louisiana to plead his case the second time.  Louisiana is the only state in the country that actually has a statute naming embryos “juridical persons.”  Without this statute, Loeb couldn’t pull the stunt he has—having the frozen embryos themselves bring the lawsuit.

Louisiana Law on Frozen Embryos

Louisiana is, without a doubt, among the most harshly restrictive states when it comes to reproductive rights and abortion.  This is probably obvious from the fact that they’re the only state in the nation where Loeb could have brought a lawsuit with embryos as plaintiffs.

Louisiana Health Law goes further than any other state on the issue of frozen embryos—making them juridical persons.  Hearing this, you’re probably asking yourself—“what the heck is a juridical person?”  Basically, a juridical person is any entity other than a natural person that is recognized as a distinct legal entity with its own rights and duties.  It commonly comes up in the context of corporations but Louisiana has extended the concept to frozen embryos, thus allowing them to sue on their own behalf—or even more strangely be sued by others.

Louisiana law doesn’t stop there, these same laws forbid the destruction of frozen embryos and require donors to instead put their embryos up for a sort of “uterus adoption” where the donors renounce their rights in favor of “another married couple.”  So basically, the only option is to renounce rights, and allow another to act as a surrogate to the frozen embryos.  However, “another married couple” is not there for no reason.  The statute only allows married couples to implant the frozen embryos after donors give up their rights to them.

sofia vegara embryos

Perhaps most relevant, if one of the donors implants an embryo and that embryo develops into a child—that child is born with inheritance rights to both donors—in this case Vegara and Loeb.

These rights for frozen embryos in Louisiana—far beyond anywhere else in the nation—have allowed Loeb to bring his lawsuit.  However, like his lawsuit in California, it is not the laws on reproductive rights that are likely to decide the day in court but rather simple contract law.

Who Gets to Decide? Agreements When Freezing a Fertilized Embryo

As you might imagine, deciding to fertilize and freeze an embryo with another person is a huge commitment.  Like any huge commitment, it is one that should be—and usually is—entered into with extreme care and well understood agreements as to how the process will proceed.  Thus, when a couple chooses to freeze a fertilized embryo, there is nearly always a contract which details how and when the embryos may be brought to term.  For example, these contracts usually state whether there needs to be consent from one or both of the donors before an embryo may be brought to term.

Loeb and Vegara are no exception to this general rule and signed an agreement which states that the frozen embryos may only be brought to term with the consent of both of them.  Loeb has argued in California, and certainly will in Louisiana, that the agreement did not address a situation where the two separated.  However, regardless of the scope of the contract, the existence of such a contract means that it will be the first—and potentially last—thing that a court will address in deciding this case.  If the contract is valid then Loeb is bound to its terms and simply cannot demand that the embryos be brought to term without Vegara’s consent.

With this in mind, it’s no surprise that Loeb’s new lawsuit targets the validity of the contract.  Besides the argument to the scope of the contract which failed in California, Loeb has additionally argued that the agreement should be void because it violates Louisiana law.

If there is anywhere that a judge might decide that Loeb’s argument has merit and set aside the contract that has already lost him his case previously, Louisiana is that place.  This case has the potential to set precedent as one of the first cases to deal with the interaction of Louisiana’s reproductive rights law and the enforceability of a contract.

Protecting Your Reproductive Rights

Louisiana, as mentioned already, is the only place in the country to limit a woman’s reproductive rights so substantially when it comes to frozen embryos.  However, this case does serve to highlight the importance of a carefully crafted agreement if you and your partner are considering freezing an embryo.  Generally, a simpler way to go about things is to freeze eggs rather than embryos.  Where eggs are frozen as opposed to fertilized embryos the woman who provided those eggs has full autonomy over what she wants to do with them.  That way, a woman can avoid the stress of a situation like Ms. Vegara’s.

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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