Wednesday, August 24, 2016

Comparing Pennsylvania's State Overtime Law, the Minimum Wage Act, with its Federal Counterpart, the Fair Labor Standards Act

Are All Employees Presumed to be Entitled to Overtime Unless Specifically Identified as an “Exempt” Employee Under State a Federal Overtime Laws?

Yes.  The presumption under state and federal law is that all employees are entitled to overtime. However, each statute lists certain jobs that are considered to be exceptions to this general rule; if you have such a job you are not entitled to overtime – i.e. are an “exempt” employee.

Don't Forfeit Your Hard-Earned Overtime Pay!
How and Where Can I Find Pennsylvania’s Overtime Law and the Federal Overtime Law and What Are the Differences Between Them?

Pennsylvania’s overtime law is codified in the Pennsylvania's Minimum Wage Act, 43 P.S. §§ 331.101, et seq. (“PMWA”) and regulations. (34 Pa. Code §§ 231.1, et seq.).  

Although the PMWA is substantially similar to the federal overtime law, the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (“FLSA”), the PMWA provides greater overtime rights than does the FLSA in a number of important situations.

Does My Employer Have to Follow Pennsylvania’s Overtime Law if it is Different from the Federal Overtime law?

Yes, it does.

Pennsylvania employers must follow the PMWA and its companion regulations even if these are more generous to employees than those found in the FLSA. Indeed, Section 218 of the FLSA, and its companion regulation found at 29 C.F.R. §541.4 specifically state that federal law does not affect enforcement of state overtime requirements, such as those set forth in the PMWA:

29 C.F.R. §541.4 - Other laws and collective bargaining agreements.

The Fair Labor Standards Act provides minimum standards that may be exceeded, but cannot be waived or reduced. Employers must comply, for example, with any Federal, State or municipal laws, regulations or ordinances establishing a higher minimum wage or lower maximum workweek than those established under the Act.

 *               *                *

29 U.S.C. §218(c)(2)  No Limitation on Rights

Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.


Where and How Can I Find a List of Exemptions Under the Federal Overtime Law and Under Pennsylvania’s Overtime Law?

FLSA’s exemptions are found at 29 U.S.C. §213.  After stating that employees who fill Administrative, Professional or Executive positions are exempt, section 213 then lists a number of specific jobs that are deemed to be exempt.


You Cannot Sign Away
Your Right to Overtime Pay
If I Signed an Agreement Saying I Agreed That I Would Not Be Paid Overtime, Did I Waive My Right to Overtime?

As set forth in the FLSA Section 218(c), above, an employee way not be required to waive his/her right to overtime, and any written agreement purporting to effectuate such a waiver is null and void.  The PMWA similarly forbids waiver. 

Can I Get Overtime Under My State’s Law Even if I Am Not Entitled to Overtime Because I am Exempt Under the Federal Overtime Law, the FLSA? 

Yes, you can.  As set forth by Pennsylvania’s Supreme Court in its 2009 decision in  Bayada Nurses, Inc. v. Pa. DOL:

As has been long-established in Pennsylvania jurisprudence, interpretations of the federal FLSA provide guidance to Pennsylvania courts for construction of the MWA only when the MWA contains the same (or at the very least similar) language as the FLSA.

Comparing the Differences Between Exemptions for Overtime Found in Pennsylvania’s Minimum Wage Act’s Overtime with Those Found Within the Federal Fair Labor Standards Act Overtime Law

One must parse through the relevant exemptions to determine whether any given job is found one or both of the exemption lists.  However, there are some differences.

For example, FLSA specifically exempts “computer employees,” while PMWA contains no such exemption. Hence, if you do any one of a variety of computer-based jobs and work in Pennsylvania, you are entitled to overtime under the PMWA, even though you are not so entitled under FLSA.

Has Identified Differences Between PMWA and FLSA
 Does Pennsylvania’s Overtime Law Make Salaried Employees Exempt from Overtime Like the Federal Overtime Law?

No, it does not.  Unlike its federal counterpart, Pennsylvania does not allow an employer to withhold overtime pay just because an employee earns a certain salary.  The salary issue can be complicated, but in general the PMWA is more helpful to employees than is the FLSA.


Helping Pennsylvania Workers With Overtime Issues Since 1991

Philadelphia Area Overtime Attorney Helping Employees with Overtime Claims

John A. Gallagher is an employment lawyer who represents claimants in Pennsylvania. 

John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania Overtime Lawyer Provides Free Telephone Consultations and Contingent Fee Representation

If you believe you require guidance concerning an Overtime issue, and reside in or near Southeastern Pennsylvania, feel free to send me an e-Mail or give me a call.  I have represented workers who live or are employed in or near Reading, Bryn Mawr, Devon, West Chester, Philadelphia, Allentown, Bethlehem, Lancaster, Levittown, Limerick, Abington, Allentown, Collegeville, Downingtown, Blue Bell, Eagleville, Norristown, Springfield, Drexel Hill, Oaks, Doylestown, Coatesville, Lionville, Newtown Square, Broomall, Aston, Avondale, Media, Norristown, Cheltenham, Chester Springs, Audubon, Ambler, Chadds Ford, Berwyn, Malvern, Paoli, Manayunk, Roxborough, Havertown, Haverford, Lansdowne, Lansdale and Villanova.

Need an Experienced Lawyer to Help You With an Overtime Exemption Issue?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.


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Friday, August 5, 2016

How Are Settlements Made on Employment Discrimination Claims Taxed?

Should the Settlement Paid on My Discrimination Claim be Subjected to Withholding and Taxes? 

DISCLAIMER:  I am NOT a licensed tax attorney; I have never received any formal training relating to the Internal Revenue Code or any topic raised herein.  This Post is based solely upon my interpretation of the cases and statutes discussed herein.  You should NOT rely upon this Blog Post in any way, and should instead retain a licensed tax professional if you require guidance as to any issue discussed below.

Settlements Paying Lost Wages to
Discrimination Victims Taxable
The IRS has made clear that a plaintiff bringing a claim under federal anti-discrimination statutes such as Title VII, the Pregnancy Discrimination Act, the Americans With Disabilities Act or the Age Discrimination in Employment Act must pay ordinary withholding and taxes on any part of a settlement or judgment paid to the plaintiff that is intended to compensate he/she for lost wages.


But, how about any portion of such a settlement that is intended to compensate the plaintiff for his/her emotional distress?  Unfortunately, it appears that such compensation is also to be treated as ordinary W-2 income. 

NOTE:  Settlements or judgments paid to a plaintiff who has brought a claim under the Family and Medical Leave Act of 1993 may NOT be subject to taxation.

FMLA Claims Subject to Different,
Possibly More Favorable Tax Treatment

Settlements Paid Out on Claims for Lost Wages and Compensation Made Under Anti-Discrimination Laws Such as Title VII Are Treated as Ordinary Income and Subject to Withholding and Taxes and are Paid as W-2 Income Just Like a Regular Employee Paycheck

Any portion of a settlement or judgment paid to compensate a plaintiff for lost wages on a claim made pursuant to anti-discrimination laws such as Title VII, the Americans With Disabilities Act and the Age Discrimination in Employment Act is to be treated as “ordinary income.”

Settlement Check Looks Just Like Regular Paycheck -
Although Hopefully LOT Bigger!
Hence, any such recovery is paid out like a regular paycheck, i.e. reduced by FICA, state and local tax obligations, as well as required contributions to Social Security and Medicare. As per  Publication 4345 (Rev. 4-2015) 

Lost wages or lost profits

•      If you receive a settlement in an employment-related lawsuit; for example, for unlawful discrimination or involuntary termination, the portion of the proceeds that is for lost wages (i.e., severance pay, back pay, front pay) is taxable wages and subject to the social security wage base and social security and Medicare tax rates in effect in the year paid. These proceeds are subject to employment tax withholding by the payor and should be reported by you as ‘Wages, salaries, tips, etc.” on line 7 of Form 1040.

This comes to a surprise to many of my clients, and perhaps understandably so.  That is due to the widespread understanding that recoveries made on personal injury claims are by and large tax free. As per the same Publication 4345:

Personal physical injuries or physical sickness

•     If you receive a settlement for personal physical injuries or physical sickness and did not take an itemized deduction for medical expenses related to the injury or sickness in prior years, the full amount is non-taxable. Do not include the settlement proceeds in your income. BUT [portion discussing medical expenses omitted]…
                                 .                      .                         .
Emotional distress or mental anguish

•     The proceeds you receive for emotional distress or mental anguish originating from a personal physical injury or physical sickness are treated the same as proceeds received for Personal physical injuries or physical sickness above.

If I Sue for Discrimination and Some of the Settlement or Judgment is Intended to Compensate me for Emotional Distress, is That Part of my Recovery Taxable Like Ordinary Income?

Any employment-related claim will virtually always include a claim for emotional distress. That is so because a loss of employment resulting from illegal employment practices is not only damaging to an individual’s feelings of self-worth, but also to one’s financial stability. 

Victims of Discriminatory Termination Often
Suffer Great Emotional Distress
It is axiomatic that when conscientious human beinG's with ordinary obligations are separated from employment through no fault of their own, great psychological pain almost always surfaces, and endures. When the root cause of the separation was an immutable human characteristic such as an individual’s sex, color, national origin, age, disability or religious beliefs, it stands to reason that the pain is exponentially greater. 

The pain caused by such insults to one’s self-esteem, reputation and social standing are in all such cases exacerbated further by the anguish that inevitably results when one no longer has sufficient financial means to meet his/her living expenses. 

Hence, whenever I settle a claim for loss of employment resulting from unlawful employment practices, I always seek and recover some compensation for my client’s emotional harm.  Indeed, in many cases, a significant portion of the settlement paid on a discrimination claim is intended to compensate the plaintiff for such emotional distress.

Logic dictates, at least in my view, that damages in the form of mental/psychological pain are in essence personal injuries and, if a personal injury plaintiff’s recovery for such damages is not taxable, the very same should be true for victims of unlawful employment practices. 

The Majority View is That All Portions of a Settlement Paid on Employment-Related Claims Such as Race, Sex, Age or Disability Discrimination, are Subject to Ordinary Withholding and Taxation and Should be Paid Out as W-2 Income

The way I read the Publication 4345, the only part of a settlement received in an employment-related claim that is subject to withholding and taxes is “the portion of the proceeds that is for lost wages (i.e., severance pay, back pay, front pay).”  I believe my reading is supported not only by the plain words in the Publication, but also by the absence of any suggestion to the contrary therein.


The Final Word:
All Settlement Proceeds on Employment-Related Claims
May be Taxable as Ordinary Income
Alas, the IRS may see things differently.



IRC §104(a)(2), (entitled “Compensation for injuries or sickness”), provides that only proceeds paid to a litigant “on account of personal physical injuries or physical sickness” are entitled to tax free recovery. 

The Code of Federal Regulations, which are administrative regulations published by the executive departments and agencies of the federal government in order to explain federal statutes, specifies that “[e]motional distress is not considered a physical injury or physical sickness [unless such distress is] attributable to a physical injury or physical sickness.”   

Based upon these provisions, numerous commentators, including the American Bar Association, have concluded that all portions of a settlement or judgment paid out to a plaintiff making an employment-related claim are subject to ordinary withholding and taxes.

Insofar as I am aware, the United States Supreme Court has yet to specifically address this issue. Unless and until it does, it appears that the most prudent course is to treat all portions of a settlement or judgment received by a plaintiff making an employment-related claim exactly the same as the paycheck said plaintiff once earned while employed by the former employer he/she has sued.  


At Least...
Attorneys Fees Not Taxable to Plaintiff
NOTE:  Any portion of a settlement or judgment that is payable to the plaintiff’s attorney is not taxable to the plaintiff. 



Helping Pennsylvania Workers With Employment=Related Issues Since 1991

Chester County, Pennsylvania Employment Lawyer Representing Individuals With Claims for Discrimination, Retaliation, Wrongful Discharge and Unemployment

John A. Gallagher is an employment attorney who represents workers in the Philadelphia Area of Southeastern Pennsylvania. 

John typically represents employees who need an employment lawyer in the Delaware Valley, including those employed in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania Discrimination Lawyer Provides Free Telephone Consultations and Contingent Fee Representation

If you believe you require guidance concerning any aspect of your employment, and you live or work near Philadelphia, feel free to send me an e-Mail or give me a call.  I have represented workers who live or are employed in or near Philadelphia, Broomall, Newtown Square, Media Springfield, Nether Providence, Swarthmore, Chichester, Radnor, Wayne, Villanova, Haverford, Havertown, Eagleville, Oaks, Phoenixville, Collegeville, Lionville, Downingtown, Coatesville, Caln, West Chester, Norristown, East and West Norriton, Pottstown, Limerick, Abington, Blue Bell, Upper and Lower Gwynedd, Reading, Bryn Mawr, Devon, Allentown, Bethlehem, Lancaster, Levittown, Eagleville, Drexel Hill, Aston, Avondale, Cheltenham, Chester Springs, Audubon, Ambler, Chadds Ford, Berwyn, Malvern, Paoli, Manayunk, Roxborough, Lansdale, Lansdowne and Honey Brook.

Need an Experienced Attorney to Help You With a Severance Agreement?

Click Here if you have questions about any aspect of employment law, from employment contracts to separation agreements, overbroad non-compete contracts to unduly burdensome non-solicitation agreements, from wrongful termination claims to actions seeking unpaid wages and overtime, from questions concerning your rights Family and Medical Leave to claims for disability payments

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from misclassification as an independent contractor to willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.


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Sunday, July 31, 2016

Are Judgments or Settlements Under Family and Medical Leave Act Subject to W-2 Taxes and Withholding or Should They be Paid Under a 1099?

Verdicts, Awards and Settlements Paid Pursuant to Claims Made Under Title VII, the Americans With Disabilities Act and the Age Discrimination in Employment Act Are to be Treated as Ordinary Income Subject to Ordinary Taxes and Withholding and Paid Under a Form W-2

DISCLAIMER:  I am NOT a licensed tax attorney.  This Post is based solely upon my interpretation of the cases and statutes discussed herein.  Seek out a tax professional if you require guidance as to any issue discussed below.


I am NOT a Tax Expert!

Since the enactment of the Small Business Job Protection Act of 1996, it is universally understood that awards or settlement paid to resolve employee claims brought under Title VII and its progeny (such as the with legislation prohibiting pregnancy, age, and disability discrimination (i.e. Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act, Americans with Disabilities Act of 1990, etc.) must be treated as ordinary income and are thus subject to ordinary taxes and withholding, i.e. must be paid under a W-2.  That is so because such statutes provide that an employee may recover "back wages."


Discrimination Awards and Settlements Taxable as Ordinary Income
and Subject to W-2 Withholding
However, insofar as the tax treatment of recoveries made by employees are concerned, the Family and Medical Leave Act (which is not part of the Title VII tapestry of civil rights' laws), has long been viewed differently by the federal courts sitting in Philadelphia.

That is so because the FMLA provides that employees may not recover "back pay," but, rather, damages "equal to the amount of ... any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation."


Recovery Under FMLA Treated Differently
The Majority View of the Federal Courts Sitting in U.S. Third Circuit, Which Covers Federal Lawsuits Brought in Pennsylvania, Delaware, New Jersey and the Virgin Islands, is That Money Recovered by Employees in Family and Medical Leave Act Cases is to be Treated as 1099 Miscellaneous Income

In a 1998 decision, Churchill v. Star Enterprises, federal judge Harvey Bartle III engaged in a thorough analysis of the Internal Revenue Code before holding:

In deciding this pending motion, we do not pass on what, if any, taxes or FICA contributions plaintiff may owe on the monies received as a result of the judgment. See Schleier, 515 U.S. at 331, 115 S.Ct. 2159; United States v. Burke, 504 U.S. 229, 237, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992). We simply hold that no withholding is mandated under federal or state law. Defendants are obligated to pay to plaintiff the entire amount of the judgment plus appropriate post-judgment interest.

Since Churchill was decided, it has been called into question, but has never been overruled by any court of higher jurisdiction, such as the United States Court of Appeals for the Third Circuit, or the United States Supreme Court.

Judge Bartle's 1998 Decision in Churchill
Reaffirmed in July 2016 Decision 
Notwithstanding Churchill, however, I have frequently had a difficult time convincing counsel for companies with whom I am settling FMLA claims on behalf of my employee clients that the entire settlement should be treated as 1099 income.  Instead, the most common outcome is an agreement that some percentage of the settlement funds will be paid under a 1099, with the balance to be subjected to ordinary taxes and withholding and paid under a W-2.

A July 2016 Decision by a Federal Judge in Philadelphia Holds That a Settlement Made on a Claim Brought Under the FMLA is NOT to be Treated as Ordinary Income Payable Under a W-2 and Should Instead be Paid as Miscellaneous Income Under a 1099

In Gunter v. Cambridge-Lee Industries, a decision rendered by federal Magistrate Judge Henry S. Perkins on July 14, 2016, the court analyzed Churchill and its progeny, before holding:

As such, after review of the two competing lines of cases regarding withholding, the Court finds Churchill and Carr and their emphasis on the unique language of the FMLA persuasive, distinguishing it from other employment statutes to be persuasive and will follow the holdings of those cases. We, therefore, hold that no withholding is required for the proceeds of the settlement in this case payable to the plaintiff.

At this point, it is fair to conclude that, until overruled, the rule announced in Churchill and reaffirmed in Gunter, is the law of the land -- at least in the Third Circuit -- judgments or settlements on claims made under the Family and Medical Leave Act should be paid out as miscellaneous income under a 1099, and not as wages subject to ordinary taxes and withholding paid under a W-2.


Helping Pennsylvania Workers With FMLA Issues Since 1991

Philadelphia Area Family and Medical Leave (FMLA) Attorney Helping Employees With Leave Requests and Short-Term Disability Applications

John A. Gallagher is an employment lawyer who represents claimants in Pennsylvania. 

John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania FMLA/Disability Lawyer Provides Free Telephone Consultations and Contingent Fee Representation

If you believe you require guidance concerning a Family and Medical Leave Act issue, and reside in or near Southeastern Pennsylvania, feel free to send me an e-Mail or give me a call.  I have represented workers who live or are employed in or near Reading, Bryn Mawr, Devon, West Chester, Philadelphia, Allentown, Bethlehem, Lancaster, Levittown, Limerick, Abington, Allentown, Collegeville, Downingtown, Blue Bell, Eagleville, Norristown, Springfield, Drexel Hill, Oaks, Doylestown, Coatesville, Lionville, Newtown Square, Broomall, Aston, Avondale, Media, Norristown, Cheltenham, Chester Springs, Audubon, Ambler, Chadds Ford, Berwyn, Malvern, Paoli, Manayunk, Roxborough, Havertown, Haverford, Lansdowne, Lansdale and Villanova.

Need an Experienced Lawyer to Help You With an FMLA Leave Issue?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.


Thanks for checking in with us.

Tuesday, June 14, 2016

Fletcher Cox Signs 6-Year Deal With Eagles and Receives Biggest Guarantee of Any Non-QB In NFL History!

Eagles Sign Fletcher Cox to Six-Year $103 Million Contract With $63 Million in Guaranteed Money! 

According to Reuben Frank of CSNPhily.com, “the only players given more guaranteed money in their contracts in NFL history are Eli Manning ($65 million) and Philip Rivers ($65 million).”  

Buy, Fletcher, Buy
When Does the Eagles’ Fletcher Cox’s New Contract Extension Start, and How Much Per Year Will He Be Paid?

The extension kicks in beginning in 2017, and will pay Fletcher Cox an annual salary of $17.17 Million per year.

As of today, that is will be the second highest annual salary paid to any NFL defensive player, trailing only the Miami Dolphin's Ndamukong Suh, who is paid 19.625 Million a year.  

Philadelphia Eagles' Award Fletcher Cox With New Contract That Includes Most Guaranteed Money ($63 Million!!!) Ever Paid to an NFL Defensive Player 


The deal is worth $103 million with $63 million in guaranteed money, sources told ESPN NFL Insider Adam Schefter. That means the Pro Bowl defensive lineman will have the highest guarantee for a non-quarterback in NFL history.

It makes me wonder....how much would these defenses be worth today?

The Greatest Ever?  Best I've Seen!

The Purple People Eaters

The Best Ever for One Year - the '85 Bears
Willie Lanier, Buddy Bell, Buck Buchanan, Curly Culp, Emmitt Thomas -
Hall of Famers ALL!  


The Fearsome Foursome

The Doomsday Defense













Ahhh, Clyde, Reggie, Jerome, Eric and Seth - 
What Should Have Been...
Who Are the Top 10 Highest Paid NFL Defensive Players by Annual Salary?


Ndamukong Suh, Miami Dolphins -                       $19,625 Million
Fletcher Cox, Philadelphia Eagles-                         17.17 Million
Olivia Vernon NYG -                                                17       
Justin Houston, Kansas City Chiefs -                     16.83
J.J. Watt, Houston Texans -                                     16.67  
Marcell Dareus, Buffalo Bills -                                16.1
Gerald McCoy, Tampa Bay Buccaneers -              15.87
Malik Jackson Jacksonville Jaguars -                    15
Darrell Revis, N.Y. Jets -                                          14.24
Richard Sherman, Seattle Seahawks -                    14

Who Are the Top 10 Highest Paid NFL Defensive Players by Guaranteed Money in Their Contracts


Fletcher Cox, Philadelphia Eagles-                         $63 Million
Marcell Dareus, Buffalo Bills -                                60
Ndamukong Suh, Miami Dolphins -                       59.95  
Richard Sherman, Seattle Seahawks -                    58.8
Olivia Vernon NYG -                                                52.5    
Justin Houston, Kansas City Chiefs -                     52.5
J.J. Watt, Houston Texans -                                     51.8               
Gerald McCoy, Tampa Bay Buccaneers -              51.85
Malik Jackson Jacksonville Jaguars -                    42
Darrell Revis, N.Y. Jets -                                          39


Tuesday, May 24, 2016

What is a "Serious Health Condition" Under the Family and Medical Leave Act (FMLA)? Is the Flu Covered by FMLA?

Qualified Employees Suffering From a Serious Health Condition Are Entitled to Up to 12-Weeks of Unpaid Leave Per Year Under the Family and Medical Leave Act (FMLA)

Generally speaking, the Family and Medical Leave Act provides qualified employees with the right to take time off of work without fear of retaliation if the employee or his/her close family member has a "serious health condition," or if the employee seeks to take time off to care for his/her new-born or adopted child.

FMLA = Job Security via Reinstatement Rights
Here are the basic requirements for FMLA Leave

NOTE:  Although there are some exceptions for certain types of employers, and certain types of employees, the following general rules apply to most American workers):

Employer:  must have more than 50 full-time employees located within 75-miles of applicat employee's workplace 

Employee:  must have been employed by company for at least one-year (employment term need not be consecutive);

Employee:  must have worked at least 1,250 hours during the 52-weeks immediately preceding request for leave;

Employee OR employee's close family member must have a serious health condition;

Employee must not have taken 12-weeks of FMLA leave within 12-months immediately preceding leave request (if less than 12-weeks previously used during immediately preceding 12-months, employee may take remaining number of days/weeks until full 12-week allotment exhausted).


Do I Have a Serious Health Condition That Entitles Me to Family Leave?  Does My Close Family Member, Infant or Child Have a Serious Health Condition Under FMLA?

What is a "Serious Health Condition" Under FMLA?

FMLA leave qualification issues seldom arise when the injury or illness at issue involves a serious personal injury such as one suffered in a car accident or a serious event that results in an observable wound or injury, or an in-patient stay at a hospital lasting more than a day.

Similarly, if an employee or his/her close family member is suffering from a serious illness such as a heart condition, cancer or potentially life-threatening malady, the right to FMLA Leave will rarely be called into question.

NOTE: In such situations, the employee's initial entitlement to FMLA Leave will likely not be debatable; nevertheless, it is possible that at some point the employee's right to remain out on FMLA Leave may become an issue of contention.

In addition to the above scenarios, leaves necessitated by a pregnancy, or the birth of a child, are known to be covered by FMLA.

FMLA Leave Always Available to Pregnant Workers
 and Immediately Following Childbirth
Is a Hospital Visit or Stay Required for Me to be Entitled to Family and Medical Leave (FMLA)?  Can My Family Doctor Put Me Out of Medical Leave?


Certification from Your Physician Always Required for FMLA Leave
FMLA entitlement issues most often arise when a medical condition does not require a hospital stay or potentially life sustaining medical care.  Hence, while an employer may (and almost always will) require that your physician complete an FMLA Medical Certification form no matter what the reason for your absence, such Certifications or relatively pro forma when the reason for leave is a serious injury sustained in a car accident, or where the employee has been diagnosed with cancer.

Where a potential serious condition other than significant personal injury, life threatening illness or pregnancy-related condition is involved, however, the medical certification becomes truly essential.

There are two situations involving relatively short-term absences that can lead to dispute - absences due to the onset of symptoms relating to chronic, recurring illnesses and short-term, non-recurring illnesses such as the flu.

While obtaining FMLA Leave in order to treat and recover from acute onset of a chronic illness is often simple, companies detest granting leave for short-term illnesses such as the flu, and the law supports denying leave in such circumstances.

How or Where Can I Find a FMLA Medical Certification Form to be Completed by my Family Doctor?  My Chronic Medical Condition Has Cropped Up and I Need Family Leave

If you need to take time off of work because a previously asymptomatic chronic illness has recently been causing you pain and discomfort, it is essential that you seek medical treatment while out on leave, and that your physician complete a FMLA Leave Medical Certification.

Always Necessary, but Essential
When Seeking Leave for Chronic or Short-Term Illness
Where FMLA qualifications for chronic conditions are concerned, the United States Department of Labor regulation states
Leave Entitlement Carefully Defined
Where Short-Term Illnesses Concerned


"Chronic Conditions: Any period of incapacity or treatment for such incapacity due to a chronic serious health condition that requires periodic visits (at least twice per year) to a health care provider, continues over an extended period of time and may cause episodic rather than a continuing period of incapacity."

Typical recurring chronic conditions include medical conditions such as diabetes, epilepsy, obstructive bowel syndrome and the like.

Thus, if you are suffering from the acute onset of symptoms you know to be associated with a chronic illness from which you suffer, it is imperative that you contact your doctor either immediately before or immediately after you give your employer notice of your need for FMLA Leave.  If your physician is "on board," your application for FMLA Leave due to the onset of symptoms associated with a chronic medical condition will almost always be granted.


Am I Entitled to FMLA Leave If I Miss a Week of Work Due to the Flu, or Bronchitis or an Earache or a Bad Cold?  My Child Has the Flu, and a Virus, May I Take Family and Medical Leave to Care for My Son or Daughter?

Non-recurring, one-time ailments lasting up to a week are among the most difficult FMLA situations.

Perhaps the most common area of dispute arises when an employee misses work for 2-3 days because the employee or his/her close family member (spouse or child) is sick with a "one-time, non-recurring" illness such as the flu, food poisoning or a similarly disabling short-term illness treated without assistance from the family doctor.

The Family and Leave Act generally does not permit an employee to take FMLA Leave because the employee or a close family member has the flu, a cold or a viral infection of some sort.

Flu, Common Cold Not
Serious Health Condition Under FMLA
In this connection the United States Department of Labor has stated the following:

"The legislative history also states that the term [serious health condition] "is not intended to cover short-term conditions for which treatment and recovery are very brief" and "minor illnesses which last only a few days and surgical procedures that typically do not involve hospitalization and require only a brief recovery period. Complications arising out of such procedures that develop into ‘serious health conditions’ will be covered by the act."

How do FMLA, Short-Term Disability Benefits and Unemployment Fit together? 

Helping Pennsylvania Workers With FMLA Issues Since 1991
Philadelphia Area Family and Medical Leave (FMLA) Attorney Helping Employees With Leave Requests and Short-Term Disability Applications

John A. Gallagher is an employment lawyer who represents claimants in Pennsylvania. 

John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania FMLA/Disability Lawyer Provides Free Telephone Consultations and Contingent Fee Representation

If you believe you may require Family and Medical Leave and Short-Term Disability Benefits, and live or work in Philadelphia, Allentown, Reading, Bethlehem, Lancaster,  Levittown,  Abington, Allentown, Auburn, Ambler, Ardmore, Aston, Audubon, Avondale,  Bala Cynwyd, Bensalem, Berwyn, Bethlehem,Bird In Hand, Birdsboro, Birmingham, Boothwyn, Bowmansville, Boyertown, Bridgeport, Bristol,  Brookhaven, Broomall,  Brownfield,  Bryn Athyn,  Bryn Mawr, Buckingham,  Burlington, Caln, Chadds Ford, Chalfont, Charlestown, Cheltenham,  Chester Springs, Chester, Chester Heights,  Cheyney, Coatesville, Collegeville, Concord, Concordville, Conshohocken, Coventry, Cranberry,  Crum Lynne,  Darby, Daylesford, Devault, Devon, Douglassville, Downingtown, Doylestown, Dresher,  Drexel Hill,  Dublin, Eagleville, East Bradford, East Brandywine, East Coventry, East Fallowfield, East Goshen and East Nantmeal or any surrounding areas, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Experienced Lawyer to Help You With a FMLA Leave Issue?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

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