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Finding protection in the employment law ‘Bermuda Triangle’

The Bermuda Triangle of the Atlantic Ocean is that odd space of water where planes and boats have mysteriously disappeared for no apparent reason. Employment law has its own version of a Bermuda Triangle. It lurks within the competing provisions of the Federal and Medical Leave Act, the Americans with Disabilities Act and each state’s workers’ compensation laws.

The relationship that exists between all these laws makes for some very complicated legal waters for workers in the San Diego area and elsewhere in the country. The protection of employee rights is rather well covered under the various laws, but sorting out which rights exist under which law depends a lot on getting a solid assessment of your specific circumstances from a skilled and experienced attorney.

This is something that a teacher in Indiana may appreciate in a particular way. He worked as a fifth-grade teacher in one of that state’s public school systems during the 2010-2011 school year. But because of excessive absences taken during that period, his principal recommended he not be rehired for the next year and the board went along with the recommendation.

To be clear, reports show the single father did miss a lot of work. But the reasons were all health related. His son has sickle cell anemia and often fell sick during the school year. The father missed some time, too, due to complications related to diabetes. In all, he missed 23 days of school.

When he wasn’t rehired, he sued alleging that his rights under the ADA and FMLA had been violated. Several courts rejected the ADA claim noting that the law stipulates that job attendance is a requirement. On the question of whether he might have been denied his rights under the FMLA, a lower court ruled against the man, but an appeals court decision reversed that finding.

The appeals court said that the school should have facilitated the teacher’s taking of leave for the sake of his son, but failed to do so. It also suggested that the school board and principal may have weighed the man’s need for FMLA leave as a negative and reason not to rehire him — effectively retaliating against him.

As a result of the decision, the FMLA question has been sent back to the lower court for further consideration consistent with the appeals court’s opinion.


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