“My grandmother started walking five miles a day when she was sixty.
She’s ninety-seven now, and we don’t know where the heck she is.”

– Ellen DeGeneres

ACTUAL CASE HISTORY: Just recently, in the course of representing a client, I carefully reviewed the Family and Medical Leave Act (“FMLA”) law and its regulations. When I did, I learned something that I did not know, but wish I had known: Under the federal FMLA regulations, the definition of “parent” includes any person who acted in the place of your parent when you were a minor, even if they were not related to you in any way.

When I learned this startling fact, I was able to assist my client in establishing that his employer had clearly violated the FMLA law when it refused him a FMLA leave of absence to assist his ailing uncle who was suffering from Alzheimer’s Disease. On the basis of this “discovery,” my client was able to “be there” for the uncle who “was there” for him after his own parents had been taken from him as the result of a fatal car wreck when he was just a teenager.

I hope this “discovery” is helpful to you, or someone you know, if and when you need to be an “angel” to someone who once was an “angel” for you.

LESSON TO LEARN: The U.S. Family and Medical Leave Act (“FMLA”) entitles eligible employees to take up to 12 workweeks of job-protected unpaid leave to care for a spouse, son, daughter, or parent, with a serious health condition. It is a great law, because it permits employees up to 12 weeks off to care for family members, and at the same time guarantees their jobs when they return (with just a few narrow exceptions.)

In enacting the FMLA law, the U.S. Congress wisely recognized the changing nature of the American family. The Congress also recognized changes in the American population, including the growing number of elderly Americans and the growing need of employed persons to provide care both for their children and their parents.

For FMLA purposes, a “parent” is defined broadly, in keeping with the changing nature of the American family. A “parent” under FMLA includes the (i) biological, (ii) adoptive, (iii) step, or (iv) foster parent of an employee. Most interestingly, “parent” under FMLA also includes an individual who acted “in loco parentis” to the employee, when the employee was a minor.

“In loco parentis” is a Latin phrase that means “in the place of a parent.” It refers to the type of relationship in which a person has put themselves in the situation of a parent by voluntarily assuming and discharging the obligations of a parent to a child. It exists when an individual intends to take on the role of a parent. It does NOT require any pre-existing legal, biological or other relation.

WHAT YOU CAN DO: If you are in a quandary about needing time off work to care for a person who cared for you when you were a minor, it may be wise to bear in mind these five points:
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“ Sometimes you can only find Heaven
by slowly backing away from Hell.”

– Carrie Fisher

ACTUAL CASE HISTORY: I can recall many case histories of clients, and their family members, who have dealt with the reality of addiction to substances, both legal and illegal. I am not an addiction therapist, that is for sure, but I do receive many questions all the time regarding how to best deal with legal issues related to addiction and the workplace. Here are a few issues that I remember having been consulted on:

–Can an employer refuse to hire a person because he or she is a recovering addict, free of use for years?
–Can an employee be terminated for using illicit drugs on his or her days off?
–Is addiction a legally recognized disability under the law?
–Is alcohol addiction treated the same way as drug addiction?
–Is addiction to prescription drugs treated the same way as addiction to illegal drugs?
–If an employee confides with a company Employee Assistance Program (“EAP”) that he or she is having problems with drugs, must the EAP staff maintain strict confidentiality?
–Is misconduct to be excused because it took place while the employee was under the influence of drugs?
–Can an employee be terminated for being a recovering addict?
–If you are experiencing an addiction, is it wise to tell your employer?

Because substance abuse and addiction have recently reached epidemic levels, we have undertaken to address these and related issues as, they arise in the workplace, one by one, step by step, day by day, to the eventual goal of providing our blog visitors with a sound platform for understanding addiction, the law, and the workplace.

This newsletter is one installment in a series on “Addiction, the Law and the Workplace.”

LESSON TO LEARN: We all have our demons, our challenges and our personal mountains to climb. Few of us are without some pains that sometimes scream out to us for some sort of relief. These matters, and the many ways in which they manifest themselves, are necessarily recognized and addressed in the workplace, and in “the law of the workplace,” as well.

Actually, the law is rather forgiving on this subject, consistent with the notion of redemption. Essentially, the law says “If you are helping yourself, we will help you do so, but if you are not helping yourself, you are on your own.” In my view, our Congressmen and Congresswomen have been quite wise in this respect.

[Incidentally, it should be pointed out that addiction to alcohol is treated somewhat differently by the law than is addiction to illegal substances, reflecting the fact that alcohol is a legally acquired addictive substance, in contrast to many other addictive substances. It should also be pointed out that there are some differences between the way the law treats addiction to legally prescribed medications and the way it treats so-called “illicit” ones.]

By our blog efforts we try to assist you, and those you care for, and those care for you, in this context.

WHAT YOU CAN DO: Is drug addiction a legally recognized – and legally protected – disability? If so, why, when and how? Here are ten (10) pointers that may be helpful to keep in mind, whether you or a loved one is dealing with an addiction, or may do so in the future:
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Question: Dear Alan: I was recently laid off from my job in pharmaceutical sales, and received a small severance. I signed up for COBRA healthcare continuation for my family. When the bill came, for family coverage all I had to pay for my entire family was $325 monthly. That is far less than I thought it would cost.

Concerned that there was a mistake, I called Human Resources, and was told that it was not the usual COBRA benefits, but “Subsidized” COBRA benefits. What does that mean?

Emy
Bozeman, Montana

Answer: Dear Emy: Good question, as many employees don’t know the difference, and many lose out because of this lack of knowledge. Let me do my best to explain.
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“One of the secrets of life
is to make stepping stones out of stumbling blocks.”

– Jack Penn

ACTUAL CASE HISTORIES: A very commonly asked question is this: “I have followed your suggestions, but it has not yet worked . . . What do I do now?”

The writer usually explains that her email memo to management “pushing back” against a dishonest performance improvement plan (“PIP”) did not get her what she wanted. Or, his request for better terms of severance achieved only minimal results. Or, perhaps, her attempt to get a waiver for a non-compete agreement received no response. Or maybe, even, his complaint of discrimination was essentially ignored.

There are five simple “next steps” available in each of those problem situations, and others, too, that remain unsolved despite your best efforts. While choosing which “next step” among them is the best one for you, surely one or more of them is the wisest one for you. And, in fact, you can try all five if you wish.

What needs to be kept in mind is that there is no problem without a solution. And many different approaches can be tried to solve a problem. It might even be your second, third or fourth attempt to solve a problem that turns out to be the most effective.

LESSON TO LEARN: Maybe you did not immediately get the results you wanted to get when asking for removal of a negative reference from your HR file. Or maybe you were turned down in your first request for an investigation of your complaint of harassment. Or, maybe, too, your repeated complaints of unsafe working conditions were simply ignored. In each of these instances – and many others, too – you would likely be frustrated, demoralized, perhaps even angry.

As the simple saying goes, “Don’t get angry . . . get even.” Or, as we are reminded, “If at first you don’t succeed, try, try again.” Or, perhaps, bear in mind the adage, “There are more ways than one to skin a cat.” (My apologies to all of you cat lovers out there.) Don’t give up. Don’t get frustrated. Just keep going.

WHAT YOU CAN DO: Here are your five alternative next paths available to you. Coincidentally, each path forward ends with the letters “ate,” as do the words “navigate” and “negotiate.” Might it be pure coincidence?:
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“ The cure for anger is delay.”

– Seneca

THREE BRIEF ACTUAL CASE HISTORIES: (1) Aquilino was a well known agricultural economist employed by an industry trade organization in Washington, D.C. His work visa was sponsored by his employer, and by the terms of his visa, if he was no longer employed by his employer, he and his family would have to return to their home country within ten (10) days. After a new Executive Director was hired who did not seem to be a “fan” of his, Aquilino had concerns that his position was insecure. Losing his job would entail Aquilino and his family having to depart the U.S. almost immediately. Aquilino and his family, however, wanted to remain in the Washington, D.C. area. Aquilino needed to find a new position before he might be laid off. He just needed some time.

(2) Margaret was a bond analyst for a large international bank. Over the years she had been awarded a significant amount of stock options. Each year, a large number of options vested. However, if she lost her position she would no longer be eligible for stock option vesting. In just six weeks, a very large number of stock options would vest. However, after receiving a poor review, she was concerned she might be let go before they vested. Margaret needed to remain employed for another six weeks. She just needed some time.

(3) Kevin and his wife had made all arrangements to adopt a child, which was scheduled to take place in about sixty days. At work, without warning, Kevin was placed on a Performance Improvement Plan (sometimes called a “PIP”), which contained a warning that, unless his performance improved “completely” in just 30 days, he could expect to be terminated. The problem was this: if he was no longer employed, the adoption process would come to an immediate halt. Kevin just needed to remain employed for 60 days, in order to complete the adoption process. He just needed some time.

Aquilino, Margaret and Kevin all managed to get the extended time on the job that each needed, and so all were able to navigate to get what they wanted, by making an honest application to each of their employers for a Family Medical Leave Act (“FMLA”) leave of absence. FMLA provides employees in companies with 50 or more employees up to 12 weeks of unpaid leave to attend to a medical or emotional difficulty, injury or illness, and the right to return to their position afterward. The law has widespread applicability, great flexibility, and very significant effectiveness – especially when you “just need some time.”

Aquilino had a teenage daughter with an eating disorder. Margaret had a mother who was in need of assisted living, but was living with Margaret while they sought a good home for her. Kevin’s wife was so nervous about losing out on the possibility of becoming an adoptive mother that she was having nightmares and difficulty eating. Aquilino, Margaret and Kevin each spoke to their family members’ therapists, doctors and health care providers, who in each case were willing to certify that each of their respective loved ones would benefit by having him or her spend more time with their loved one.

By extending his employment for 12 weeks, Aquilino got a new job, and his family was therefore able to remain in the Washington, D.C. area. By extending her employment, Margaret got the vesting of her stock options she sought. By extending his employment, Kevin and his wife got their dream come true: a baby son.

LESSON TO LEARN: You should not underestimate the utility of the FMLA leave of absence in your own work life or its potential to help you and achieve your own personal and workplace-related goals.

If you ever have a need to “e-x-t-e-n-d” your employment, and either you or a family member have a medical or emotional difficulty that would be helped by your having time off, please consider the many potential benefits of the FMLA law.

WHAT YOU CAN DO: If you need up to three months’ extension of employment, don’t hesitate to see if you might be entitled to a FMLA leave of absence. A few thoughts to help you if you do:
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