A Few Common Reminders of the Family Medical Leave Act (FMLA)

Sue Bartos 2016The Family Medical Leave Act (FMLA) allows an eligible employee to take an unpaid, job-protected leave for a specified family and medical reason with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.  A few of the common points of FMLA that may be forgotten by the employer are outlined below.

Can the employer have communications with the employee while they are on FMLA?

Yes. Under the FMLA regulations, interference with an employee’s leave includes not only refusing to authorize the leave, but also discouraging an employee from using that leave.  Asking or requiring an employee to work while on leave can cross the line to interference.  There is no bright line test to what is permissible or not.  The Courts have classified simple matters, such as an occasional phone call about a certain issue, an inquiry to close out a completed assignment, or an “unburdensome” request for materials to be permissible.  On the other hand, it will probably be impermissible to require an employee to substantially update a file or complete a task you were hoping they would have finished prior to leave.

To summarize, although the employer can communicate with the employee while he or she is on FMLA, it is recommended that the communication be for simple matters only.  Further, it is not recommended that the employer accept the employee’s offer to work while on leave.  Even if the employee voluntarily wants to work, he or she may later claim it was not voluntarily and an interference charge can be filed.

If the medical certification is completed and returned is FMLA leave automatic? 

No.  A completed and returned medical certification issued by a health care provider does not mean leave is automatic.  The employer needs to approve leave only if the employee has a serious health condition that makes him/her unable to perform one or more of the essential functions of their job. The employee is under the obligation to provide clear and sufficient information to enable the employer to determine if leave is required.

If an employee provides a certification form that is vague, incomplete, or contradictory, the employer has the obligation to request more information prior to leave being granted.  Merely stating “I am sick” or “I am depressed” does not give the employer enough information to make the determination on leave.  Do not be fooled by a doctor’s note that states the employee is “sick” or “needs a few days off to get better.”  The doctor must provide medical facts to support the employee’s need for leave and why the employee is unable to perform the essential functions of their job.

Can the employer request a second opinion?   

Yes.  If the employer is contesting the existence of a serious medical condition, requiring the employee to obtain a second opinion can be required by the employer.  If the two opinions conflict, a third opinion can be obtained.  The third opinion will be final and binding.

Can the employer request recertification?

Yes.  If the leave is for a period of more than 30 days, recertification can be requested.  If the leave is for less than 30 days, recertification can be requested if circumstances described in the original certification have changed or there is reasonable concern of the need for the leave.  In the case of intermittent leave, the medical provider should be provided the pattern of absences to determine if they are consistent with the serious health condition.

Please consult with Sue Bartos and the employment and labor law team at CMDA for any further questions you may have regarding the application of the Family Medical Leave Act.

Suzanne P. Bartos focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.

She successfully defends civil rights, wrongful discharge, and discrimination claims in state and federal courts. She has defended municipal entities at both the grievance and arbitration level and has worked with a variety of administrative agencies and tribunals including the U.S. Equal Employment Opportunity Commission, Michigan Employment Security Commission, Michigan Wage and Hour Division, National Labor Relations Board, and the Internal Revenue Service. She has also achieved outstanding results for clients in premise liability, breach of contract, collections, warranty disputes, and consumer protection. Further, she is a trusted legal advisor to school districts and community colleges on a variety of educational and governance issues.

She may be reached at (734) 261-2400 or sbartos@cmda-law.com.

Autonomous Vehicles: Coming to a Condominium or HOA Near You!

autonomous-vehicle-1200-x-796An autonomous vehicle, also known as a driverless car, self-driving car, or robotic car is a vehicle that senses its environment and operates without human input. On December 9, 2016, Governor Rick Snyder signed 2016 PA 332 into law and amended the Michigan Motor Vehicle Code to make Michigan the first state that allows for autonomous vehicles to be operated on a public street or highway. Michigan Senate Bill 995 amended MCL 257.2b(2) and now defines an automated motor vehicle as follows under Michigan law:

(2) “Automated motor vehicle” means a motor vehicle on which an automated driving system has been installed, either by a manufacturer of automated driving systems or an upfitter that enables the motor vehicle to be operated without any control or monitoring by a human operator. Automated motor vehicle does not include a motor vehicle enabled with 1 or more active safety systems or operator assistance systems, including, but not limited to, a system to provide electronic blind spot assistance, crash avoidance, emergency braking, parking assistance, adaptive cruise control, lane-keeping assistance, lane departure warning, or traffic jam and queuing assistance, unless 1 or more of these technologies alone or in combination with other systems enable the vehicle on which any active safety systems or operator assistance systems are installed to operate without any control or monitoring by an operator.

Similarly, on March 20, 2017, Senator Gary Peters announced that he was working on federal legislation to regulate autonomous vehicles, which are anticipated to become ubiquitous in the not so distant future, as many automakers have announced plans to introduce driverless cars to the market. By way of example, the Audi A8, which will be released later this year, will feature driverless technology. Ford intends to have a driverless car on the market no later than 2021. General Motors anticipates having an autonomous vehicle by 2020 or sooner as well. It is estimated that there will be ten (10) million self-driving automobiles on roadways by 2020 (referring to vehicles with features allowing them to accelerate, brake, and steer with limited or no driver input, categorized as fully or semi-autonomous). Accordingly, condominium and homeowner associations will have to deal with the benefits and detriments associated with autonomous vehicles in the near future and should be proactive about dealing with this technological advancement. The purpose of this article is to discuss the issues that autonomous vehicles may pose for condominium and homeowner associations in the next few years.

Can condominium associations and homeowners associations preclude co-owners from using autonomous vehicles on private roads?

MCL 257.74 of the Michigan Vehicle Code defines a street or highway that is subject to the Michigan Vehicle Code as follows: ” ‘Street or highway’ means the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Accordingly, a road that is privately maintained by a condominium association or homeowners association is not required to allow autonomous vehicle traffic. However, community associations that desire to exclude autonomous vehicle traffic on private roads would need to amend the condominium bylaws or declaration of restrictions to prohibit the use of autonomous vehicles, as most governing documents would permit the use of any type of vehicle on private roads. Accordingly, condominium and homeowner associations should review their governing documents to determine whether autonomous vehicles would be allowed on private roads, as the drafters or the documents likely did not contemplate the existence of such technology.

Should condominium associations or homeowners associations preclude co-owners from using autonomous vehicles on private roads?

Proponents of autonomous vehicles claim that they are safer and reduce human error that may cause accidents. Unlike a human driver, an autonomous vehicle would not drink and drive, text and drive or fall asleep at the wheel. Additionally, elderly co-owners that are not physically capable of driving would have increased mobility. Accordingly, there are many potential benefits to autonomous vehicles.

However, autonomous vehicles are not fool proof. One of the biggest concerns about autonomous vehicles is that ability of the vehicle to make moral choices. If a child kicked a ball into the street, would the vehicle decide to crash the car into a tree or run into the child if it was unable to stop? Moreover, an autonomous vehicle could have a software error or it is possible that the owner of an autonomous vehicle could attempt to modify the operating system in a manner that could cause it to malfunction. In fact, Michigan Senate Bill 998 amended MCL 600.2949b and specifically exempted a manufacturer and subcomponent system producer from civil liability if any of the equipment used in the vehicle for automatic mode had been modified. Accordingly, given that autonomous vehicles are a developing technology, it would be reasonable for a condominium or homeowner association to preclude use of autonomous vehicles until this technology is more fully developed.

For community associations that desire to allow autonomous vehicles, associations should take proper precautionary measures. First, associations should require that owners of autonomous maintain adequate insurance. In Michigan, the minimum required insurance policy only covers $20,000 for injuries or death to an individual, up to $40,000 per accident if multiple parties are injured and up to $10,000 in property damage. Accordingly, given the unknown risks involved with autonomous vehicles, community associations that allow autonomous vehicle traffic may want to amend their bylaws or create rules that requiring higher insurance coverage in the event that damage to person or property occurs on common elements and also require co-owners to provide proof of insurance. Second, while not currently required, the association may also want to mandate regular safety inspections as a condition of autonomous vehicle use. Finally, associations should review their current bylaws to ensure that appropriate indemnification provisions are in place in the event that a co-owner’s autonomous vehicles causes damage to the common elements.

What impact will autonomous vehicles have on parking in community associations?

One of the touted benefits of autonomous vehicles is that it will reduce the need for parking in urban areas, where parking is often a premium. In short, co-owners will no longer need to be within walking distance of a car if the car is capable of parking itself and later picking up the co-owner. It is estimated that the need for parking space should decline more than 5.7 billion square meters as a result of driverless cars by 2035. Experts speculate that individual car ownership will eventually become a thing of the past, and that individuals will purchase a subscription service or buy into a “cardominium” where an autonomous vehicle, that no longer needs to be parked on-site, will arrive and take an individual to their desired destination.

For condominiums that are located in densely populated urban areas, on-site parking spaces are currently sold between co-owners at premium rates. In most cases, on-site parking spaces are limited common elements that are associated with an individual unit. The Michigan Condominium Act, specifically MCL 559.139, allows for limited common element parking spaces to be transferred as follows:

(1) Assignments and reassignments of limited common elements shall be reflected by the original master deed or an amendment to the master deed. A limited common element shall not be assigned or reassigned except in accordance with this act and the condominium documents.

(2) Unless expressly prohibited by the condominium documents, a limited common element may be reassigned upon written application of the co-owners concerned to the principal officer of the association of co-owners or to other persons as the condominium documents may specify. The officer or persons to whom the application is duly made shall promptly prepare and execute an amendment to the master deed reassigning all rights and obligations with respect to the limited common element involved. The amendment shall be delivered to the co-owners of the condominium units concerned upon payment by them of all reasonable costs for the preparation and recording of the amendment to the master deed.

(3) A common element not previously assigned as a limited common element shall be so assigned only in pursuance of the provisions of the condominium documents and of this act. The amendment to the master deed making the assignment shall be prepared and executed by the principal officer of the association of co-owners or by other persons as the condominium documents specify.

While autonomous vehicles will likely decrease the value of on-site limited common element parking spaces, autonomous vehicles may also help solve parking problems for condominium associations that do not have sufficient parking. By way of example, MCL 559.136 allows for common elements to be added to a condominium as follows:

The master deed may provide that undivided interests in land may be added to the condominium project as common elements in which land the co-owners may be tenants in common, joint tenants, or life tenants with other persons. A condominium unit shall not be situated on the lands. The master deed, or any amendment to master deed under which the land is submitted to the condominium project shall include a legal description thereof and shall describe the nature of the co-owners’ estate therein.

Accordingly, if a condominium association that had insufficient parking desired to purchase a vacant lot that was 10 miles away and add the land to the condominium as general common elements, or add limited common element parking spaces on the land, it may be able to do so in order to alleviate a parking problem. Accordingly, autonomous vehicles may revolutionize the manner in which condominium associations think about parking.

Conclusion

The technological advancements in autonomous vehicles will likely create new issues related to liability, insurance and parking for condominium and homeowner associations to consider. As with any new technology, the law is typically slow to evolve and the regulation of autonomous vehicles in community associations will largely be dependent on the governing documents. Given that an ounce of prevention is worth a pound of cure, condominium and homeowner associations should be proactive in amending their governing documents and making decisions about whether to allow autonomous vehicles and what conditions to impose on autonomous vehicle use before problems arise in the next couple of years. Additionally, community associations that have parking issues may want to consider the possibility of acquiring additional land or planning to re-develop unused parking spaces in the future.

Kevin Hirzel is a Partner at Cummings, McClorey, Davis & Acho, P.L.C. and leads the Community Association Practice Group. Mr. Hirzel can be contacted at (734) 261-2400 or khirzel@cmda-law.com. Please view The Michigan Community Association Law Blog at http://micondolaw.com for additional resources on Michigan Community Association Law.

Grant Obtains Dismissals on behalf of Judge and Prosecutor

Greg Grant 2013colorGreg Grant, an attorney in our Traverse City office, recently obtained dismissals on behalf of a Northern Michigan judge and prosecutor in two separate civil rights cases. In both cases, the courts awarded his clients all of their attorney fees and costs. Mr. Grant aggressively defends judges, attorneys, and municipalities as a regular part of his practice.

Greg Grant focuses his practice on municipal law, employment and labor law, insurance defense, and litigation.  He has extensive litigation experience in the areas of employment and labor law, police liability, first amendment law, due process, Open Meetings Act and Freedom of Information Act, and has earned dismissals in each of these areas.  Additionally, he frequently provides educational and training seminars on municipal topics to clients. 

He may be reached at (231) 922-1888 or ggrant@cmda-law.com.

Sixth Circuit Reinforces the Importance of Protecting the Identities of Confidential Informants

Matt CrossIn Nelson v. City of Madison Heights, et al., while conducting a narcotics investigation at a motel police walked by the room of Shelly Hilliard (“Hilliard”) and spotted a bag of marijuana through the window. After obtaining her consent to enter the room, police found the bag of marijuana. In order to avoid arrest, Hilliard offered to call her drug dealer and order drugs from him. Hilliard signed a confidential informant form in which the sheriff’s department promised to use all reasonable means to protect her identity.

Police intercepted the drug dealer on his way to the motel. While questioning the passenger in the drug dealer’s vehicle, police revealed Hilliard as the source of their information. The passenger conveyed this information to the drug dealer. The police warned Hilliard the drug dealer knew she had set them up and he appeared angry about it. Soon thereafter, the drug dealer and an accomplice abducted and murdered Hilliard.

Hilliard’s mother (“Nelson”) filed a section 1983 claim against the police departments for which Hilliard served as a confidential informant. The defendant officer that revealed Hilliard’s identity moved for summary judgment based on qualified immunity and the district court denied the motion.

On appeal, the Sixth Circuit noted that government officials performing discretionary functions are afforded qualified immunity as long as their conduct does not violate clearly established constitutional rights. Hilliard’s interest in preserving her life is one such right.

Although the state has no duty to protect citizens from private acts of violence, it cannot cause or increase the risk of harm to citizens through its own affirmative acts without due process. Nelson claimed defendants were responsible for her daughter’s death under the “state created danger” theory. In order to establish liability under this theory, Nelson had to show:

(1)    An affirmative act by defendants that created or increased the risk Hilliard would be exposed to an act of violence by a third party;
(2)    Defendants’ action placed Hilliard in a special danger, as distinguished from a risk that affects the public at large; and
(3)    Defendants knew or should have known its actions specifically endangered Hilliard.

The defendant officer argued that he did not create or increase Hilliard’s risk of violence because she volunteered to be a confidential informant, citing Summar v. Bennett, 157 F.3d 1054, 1056 (6th Cir. 1998). In Summar, the informant was made aware that he would eventually have to testify and reveal his identity. An officer provided the prosecutor with the confidential informant’s name so it could be included in a pleading. The defendant became aware of the pleading and had the informant murdered.

The Sixth Circuit found the facts in Nelson distinguishable from Summar because the officer in Nelson never told Hilliard she would have to testify and reveal her identity. Further, the officer directly disclosed Hilliard’s identity to the person from whom he was supposed to protect Hilliard.

The defendant officer also argued Nelson could not prove he was deliberately indifferent to the risk of disclosing Hilliard’s identity because his decision to do so was a “split second decision that did not involve reflection.” However, the Court held that this was a question of fact for the jury and viewing the evidence in the light most favorable to Nelson a reasonable jury could find the officer acted with deliberate indifference and violated Hilliard’s constitutional rights under the state created danger theory.

TAKEAWAY:

Confidential informants are an invaluable investigative tool and it is important for law enforcement personnel to be aware of the risks involved in using confidential informants. Law enforcement personnel should do all in their power to ensure the safety of confidential informants. The Court in Nelson highlighted the importance of making sure informants are fully informed of the extent to which they are expected to cooperate. In Nelson, the Court made much of the fact that the officer did not tell Hilliard she would need to testify and reveal her identity. As a result, the officer’s decision to reveal her identity increased her risk of harm. Tell informants they may be required to testify and reveal their identity even if their testimony is not ultimately necessary. Failure to do so may result in civil liability for the injury or death of an informant.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

New Law Expands Protections for Municipalities in Premises Liability Lawsuits

Michigan Governor Rick Snyder recently signed into law an amendment to the Governmental Liability for Negligence Act. MCL 691.1402a. This statute describes the extent of municipal duties and liability in claims relating to sidewalk maintenance.

Municipalities are required to maintain sidewalks in reasonable repair and are not liable for the failure to maintain sidewalks unless a plaintiff proves the municipality knew, or should have known, of the defective sidewalk more than 30 days before the occurrence. A municipality is presumed to have maintained the sidewalk in reasonable repair. This presumption is rebutted only upon a showing that the proximate cause of injury was (1) a vertical discontinuity of 2 inches or more or (2) a dangerous condition in the sidewalk itself other than a vertical discontinuity.

Prior to its amendment, municipalities were limited as to the defenses they could assert. The amended statute permits municipalities to assert any defenses available under the common law with respect to premises liability claims. The amended statute specifically mentions the open and obvious defense, which protects landowners from liability if an average user of ordinary intelligence would have been able to discover the condition upon casual inspection. Landowners are under no duty to warn about open and obvious conditions.

The amendment may place plaintiffs in a precarious position. If the plaintiff presents evidence of a vertical discontinuity greater than 2 inches in order to rebut the presumption that the sidewalk was in reasonable repair, the plaintiff is also presenting evidence that may support a finding that the vertical discontinuity was open and obvious. See eg Eaton v Frontier Communications, unpublished opinion of the Court of Appeals dated Feb. 9, 2016 (Docket No. 324499) (vertical discontinuity of 2.5-3 inches was open and obvious).

Attorneys in our municipal law practice group are able to assist should you have any questions regarding this recent amendment or any municipal law issue.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

Grant Obtains a No Cause of Action Verdict in Federal Court

Greg Grant 2013colorGreg Grant of the Traverse City office recently obtained a no cause of action verdict in an excessive force trial in federal court.  Mr. Grant represented four corrections officers whom the plaintiff alleged used excessive force against him while he was inmate in a Michigan county jail.  Specifically, the plaintiff claimed that he was maced twice and tasered twice while locked in his cell.

The evidence at trial demonstrated that the plaintiff failed to follow verbal commands and was assaultive toward one of the officers.  The key to winning at trial was proving that the officers acted in accordance with jail policies and practices to preserve internal order and discipline, and to maintain institutional security.

Greg Grant, an attorney in our Traverse City office, focuses his practice on municipal law, employment and labor law, maritime law, insurance defense, and litigation.  He may be reached at (231) 922-1888 or ggrant@cmda-law.com.

Court of Appeals Reaffirms Public Bodies are Under No Obligation to Monitor FOIA Requests Once Denied

foia-photoIn Whittaker v Oakland County Sherriff, unpublished decision of the Court of Appeals dated Nov. 22, 2016 (Docket No. 329545), plaintiff filed suit alleging violation of the Freedom of Information Act (FOIA). On July 27, 2014, officers suspected plaintiff was driving under the influence and pulled him over. On August 20, 2014, prior to charges being filed, plaintiff submitted a FOIA request to defendant seeking all reports, audiotapes, videotapes, laboratory information and other information relating to the incident. On the same day, the District Court issued a warrant and complaint against plaintiff. On August 22, 2014, defendant denied the request because the information sought was part of a pending investigation or court action, citing MCL 15.243(1)(b)(i).

In February 2015, plaintiff filed suit arguing that defendant violated FOIA when it denied his initial request. While the suit was pending, defendant informed plaintiff that the exemption cited in the initial denial had expired and defendant would comply with a resubmitted request.

By July 2015, defendant had provided all of the documentation sought and moved for summary disposition. Plaintiff insisted he was still entitled to attorney fees, costs and punitive damages because defendant wrongfully denied his initial request, making it necessary for him to file suit. Defendant responded that because it would have complied with a resubmitted request after the expiration of the exemption cited, the suit was not necessary to gain disclosure of the documents. The trial court granted summary disposition and the Michigan Court of Appeals affirmed.

In affirming the trial court’s grant of summary disposition, the Court of Appeals noted that plaintiff had reason to know the circumstances surrounding the initial denial had changed and the exemption initially cited no longer applied. As the Michigan Supreme Court has held, “FOIA does not prevent a party that unsuccessfully requested a public record from submitting another FOIA request for that public record if it believes that, because of changed circumstances, the record can no longer be withheld from disclosure.” State News v Mich State Univ, 481 Mich 692, 704-705; 753 NW2d 20 (2008). The Supreme Court has also held that “[t]here is no language in…FOIA that requires a public body to continue to monitor FOIA requests once they have been denied.” Id. at 704.

The Court of Appeals concluded that defendant was under no duty to continue monitoring plaintiff’s request and the onus was on plaintiff to resubmit his FOIA request once the circumstances had changed rendering the previously cited exemption inapplicable. Because plaintiff had another option to obtain disclosure, filing suit was not necessary to obtain the documents and thus plaintiff was not entitled to attorney fees, costs and punitive damages.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

Physical Disabilities in a Virtual World

chris-mcintire-photoBusinesses and public entities who routinely utilize their website to conduct business should be aware that there has been a steady increase in the number of lawsuits filed by disabled customers who cannot access websites.  The complaints have ranged from websites that could not be navigated without a mouse, websites disabling or otherwise making it difficult for accessibility software on the site visitor’s own computer to make full use of the site, and websites that do not include options to assist a visitor who is disabled.

In 2010, Hilton Worldwide was the subject of a Department of Justice (DOJ) suit for multiple violations of the Americans with Disabilities Act (ADA).  One violation involved the reservation website, which did not allow visitors to book ADA accessible rooms online.  Hilton explained that their website design software limited the number of room options in their dropdown menu; therefore they did not include the ADA accessible options in the menu.  Ultimately, Hilton was forced to accept a wide ranging consent decree from the DOJ that included, for the first time, specific instructions regarding website accessibility.  As part of the DOJ consent decree, Hilton was ordered to comply with the Web Content Accessibility Guidelines (WCAG), which included making all options available for visitors who wanted to book a room.

In addition to Hilton Worldwide, AOL, Charles Schwab, Netflix, Target, eBay, Ticketmaster and Travelocity have all either been sued or worked with advocacy groups to avoid litigation.  In the Target class action suit, Target paid $6,000,000 and installed online screen reading software on their website.  This is the first time a federal court decreed that an online store must provide accessible website service to disabled persons (National Federation of the Blind v. Target Corporation, 452 F.Supp.2d 946. N.D. Cal. 2006).

Public entities also need to make sure their websites are not in violation of the ADA. Can a disabled visitor do everything online that any other visitor can do?  If you stream or post video/audio of public meetings is there an option to get close captioning?  Is there a way for a disabled visitor to get help if they are having problems, either in real time or within 24 hours?

The Department of Justice is working on cyber ADA guidance, which they hope to roll out in 2018.  Until then, businesses and public entities who routinely utilize their website to conduct business should follow the steps below to avoid a potential lawsuits filed by a disabled customer who cannot access their websites.

1.)  Make sure your IT department is in compliance with the Web Content Accessibility Guidelines, which can be located online.

2.)  Provide website visitors with options.  Can visitors navigate the website with just a keyboard?  Can forms be filled out without a mouse?  Do you use “Alt-text” to describe photos, allowing text-to-voice software to describe photos they cannot see, and making sure any downloadable PDF files can be accessed by the visitor using assistive technology?  Can visitors increase text size, either using a feature on their own browser or by clicking on a page link to enable a larger font?

3.)  Keep it simple.  Website developers may want to create a cutting-edge site, however all those bells and whistles can disrupt a visitor’s accessibility, especially if the visitor has assistive technology on their computer.

We may never get it perfect.  We just have to strive to “get it right.”  There will always be new technology, and as clients adapt to new technology, attorneys at CMDA are available to provide guidance to ensure businesses and public entities who routinely utilize their website to conduct business avoid lawsuits filed by disabled customers who cannot access websites.

Christopher A. McIntire, an attorney in our Riverside, California office focuses his practice on public entity, schools, employment, ADA compliance, mass tort and premises liability defense. He may be reached at (951) 276-4405 or cmcintire@cmda-law.com.

Municipal Immunity under the Family and Medical Leave Act

FMLAThe Family and Medical Leave Act (FMLA) was enacted, in part, “to balance the demands of the workplace with the needs of families…in a manner that accommodates the legitimate interests of employers…” 29 USC 2601(b). The Act entitles eligible employees to take leave:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. 29 USC 2612(a)(1).

Sections (A)-(C) are generally referred to as “family-care provisions” and section (D) is referred to as a “self-care provision.” The FMLA applies to both private employers and municipalities. 29 USC 2611(4)(A)(iii). However, the Act’s applicability to municipalities is limited.

The Eleventh Amendment of the United States Constitution provides sovereign immunity to the States and any political subdivisions thereof from suits for damages, unless the State chooses to waive said immunity. U.S. Const. Amend. XI. Additionally, Congress may abrogate the States’ immunity from suit pursuant to its powers under § 5 of the Fourteenth Amendment. See e.g. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Congress’ intention to abrogate the States’ sovereign immunity must be “unmistakably clear in the language of the statute.” Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003)

In Hibbs, the Supreme Court concluded that Congress clearly intended to abrogate the States’ sovereign immunity in enacting the family-care provisions of the FMLA. Specifically, the Court noted that the family-care provisions of the FMLA were aimed at providing a remedy for a history of gender-based discrimination in the administration of leave benefits. However, in Coleman v. Counter of Appeals of Maryland, 132 S.Ct. 1327, 182 L.Ed.2d 866 (2012), the Court held that Congress did not validly abrogate state sovereign immunity in enacting the FMLA’s self-care provision.

As a result, the defense of sovereign immunity is alive and well for damage claims against municipal employers for alleged violations of FMLA’s self-care provision. Id. at 1328. However, an employee may recover for prospective relief (i.e., reinstatements) where the employee establishes an ongoing violation of federal law. See Diaz v. Michigan Dept. of Corrections, 703 F.3d 956, 961-62 (6th Cir. 2013).

Matt Cross is an attorney in our Traverse City office where he focuses his practice on insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

Legal Update: Implications of the Recently Enacted Medical Marihuana Facilities Licensing Act on Municipalities

marijuana-legalizationWith the recent legalization of recreational marihuana in Massachusetts, Maine, Nevada and California, the total number of states in which recreational marihuana use is legal stands at eight. Twenty states have legalized marihuana for medicinal use. While nationwide legalization is far from a foregone conclusion, with over half of the country legalizing marihuana use in some form the marihuana industry is poised to be the next big growth industry. However, in Michigan, prospective marihuana entrepreneurs are in a holding pattern as the state comes to terms with a statutory scheme plagued by gray areas.

In September 2016, in an effort aimed at resolving some of the ambiguities in the Michigan Medical Marihuana Act, Governor Rick Snyder signed three bills into law (House Bills 4209, 4827 and 4210). These bills are aimed at creating a licensing and regulatory framework for medical marihuana, which must be implemented by December 15, 2017. Currently, the Department of Licensing and Regulatory Affairs is in the beginning stages of establishing the new regulatory framework and it is no longer accepting applications or issuing licenses for marihuana facilities. In the meantime, prospective marihuana facilities must work with their local governments to procure the licenses and permits necessary to operate a marihuana facility.

Section 205 of House Bill 4209, now known as the Medical Marihuana Facilities Licensing Act, imposes a licensing mandate on municipalities (defined as a city, township or village).  Specifically, Section 205 requires municipalities to adopt an ordinance authorizing any marihuana facility. Municipalities may also, through ordinances or zoning regulations, limit the type of marihuana facilities and/or the number of facilities operating within its borders. However, municipalities are prohibited from imposing regulations regarding the purity or pricing of marihuana or conflicting with statutory regulations for licensing marihuana facilities. Municipalities may also impose on marihuana facilities an annual, nonrefundable fee of up to $5,000 to help defray administrative and enforcement costs.

Within 90 days of receipt of notification that a person or entity has applied for a license to open a marihuana facility, municipalities must provide the following information to the newly created Medical Marihuana Licensing Board:

  • A copy of the local ordinance authorizing the facility;
  • A copy of any zoning regulations that apply to the proposed facility; and
  • A description of any violation of the local ordinance or zoning regulations committed by the application if those violations relate to activities licensed under the act.

This information is exempt from disclosure under the freedom of information act.

Licenses to operate a marihuana facility are exclusive to the licensee and may only be transferred upon approval from the municipality and the Licensing Board. Failure to obtain approval is grounds for suspension or revocation of the license.

Municipalities in which marihuana facilities operate receive 25% of the funds in the newly created Medical Marihuana Excise Fund, based on the number of facilities operating in the municipality. Counties receive a greater portion. Licensees are required to submit annual financial statements to the municipality.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.