Frequently Asked Questions

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  • Is Mandatory Overtime Included in Calculating FMLA-leave Allotment?

    An employee's mandatory overtime should be included in calculating the employee's total FMLA-leave allotment.  This was the conclusion of the U.S. Court of Appeals recently in its case, Hernandez v. Bridgestone Americas Tire Operations

    The Court also addressed what to do when, as is not unusual, the employee's number of overtime hours varied from week to week: use the weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period. 

    Lexington, Kentucky FMLA lawyer Robert Abell represents employees with regard to their FMLA leave and rights; contact him at 859-254-7076.

  • How do I know if my employer is covered by FMLA?

    Whether or not an employer is covered by the FMLA (Family Medical Leave Act) depends on the number of employees it has. To be covered by the FMLA a private employer has to have at least 50 employees and they all have to be working within 75 miles of each other. So, the threshold number of employees for FMLA coverage is 50.

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases under the FMLA; contact him at 859-254-7076. 

  • Is my employer covered by FMLA?

    The Family Medical Leave Act (FMLA) applies to the following employers:

    • private companies that have at least 50 employees

    • public entities including state and local governments and school systems

    If you have questions about your rights under the FMLA, contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076.

     

  • Do I have to specifically mention the FMLA to be entitled to leave?

    No.  An employee is not required to specifically mention the Family Medical Leave Act to be entitled to FMLA leavet.  What an employee must do is provide the employer with enough information to support a reasonable conclusion by the employer that the employee may need FMLA leave. 

    Lexington, Kentucky FMLA lawyer Robert Abell represents employees in cases under the FMLA; contact him at 859-254-7076. 

  • Is my employer covered by the FMLA?

    The Family Medical Leave Act or FMLA (as it is most often referred to) does not apply to or cover all employers or companies.  The FMLA applies to the following employers:

    • Public agencies, including state, local and federal employers, and local education agencies (schools); and
       
    • Private-sector employers and companies who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce - including joint employers and successors of covered employers.

    The Family Medical Leave Act is an important law that provides some protection so that hard-working Americans won't put their job at jeopardy when they are sick of have a family member that is sick and needs to have somebody take care of them. Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases where their rights under the FMLA have been threatened or violated.  Contact him at 859-254-7076. 

  • Am I eligible for leave for benefits under the FMLA?

    To be eligible for FMLA benefits or leave, an employee must meet the following criteria:

       (1) work for a covered employer;

       (2) have worked for that covered employer for at least a total of 12 months;

       (3) have worked for that covered employer at least 1250 hours over the prior 12 months; and,

       (4) work at a location where at least 50 employees are employed by the covered employer within 75 miles.

    Lexington, Kentucky FMLA lawyer Robert Abell represents employees and individuals regarding the FMLA; contact him at 859-254-7076. 

  • How much leave can I take under the FMLA?

    An employee eligible for FMLA leave from a covered employer is allowed up to a total of 12 work-weeks of unpaid leave during any 12 month period for one or more of the following reasons:

    • To take medical leave when the employee is unable to work because of a serious health condition;
    • To care for an immediate family member (spouse, child, or parent) with a serious health condition; or,
    • For the birth or placement of a child for adoption or foster care.

    ​Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases under the FMLA; contact him at 859-254-7076. 

  • Can my employer require me to use my accrued sick or vacation leave to cover part or all of my FMLA leave?

    Yes; generally, an employer may require an employee to use of their accrued paid leave, whether it be sick leave or vacation leave, to cover some or all of their FMLA leave.  The employee may choose to cover some of their FMLA leave time with accrued paid leave. This issue should be covered when FMLA leave is initially approved and discussed.

  • Is medical leave due to pregnancy covered by the FMLA?

    Yes.  An employee's incapacity to work due to pregnancy is a serious health condition under the FMLA as both federal regulations and court decisions have recognized.  29 CFR 825.114(a)(2)(ii); Aubuchon v. Knauf Fiberglass, 359 F.3d 950, 951 (7th Cir. 2004). 

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases regarding their rights under the FMLA; contact him at 859-254-7076. 

  • Can my employer change my health insurance when I'm on FMLA leave?

    No.  An employee on FMLA leave is entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking the leave. 29 CFR 825.100(b). This doesn't mean that an employer can't change the insurance under any circumstances. If, for instance, the employer is changing insurance plans for all employees, it would not violate the FMLA for the insurance of an employee on FMLA leave to be changed at the same time as all the other employees. 

    If your rights under the FMLA have been violated or if you have questions about those rights, contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076.

  • How can an employee prove that he or she suffered from a "serious health condition" that entitled her to leave under the FMLA?

    Two courts have ruled that an employee can establish that he or she was entitled to FMLA leave based on a "serious health condition" by a combination of expert and lay testimony regarding their inability to work because of illness. In a recent case, Schaar v. Lehigh Valley Health Services, No. 09-1635 (March 11, 2010), the United States Court of Appeals for the Third Circuit ruled that the employee sufficiently established her entitlement to FMLA leave based on a "serious health condition" through a a doctor's note that covered two days of her absence and her own testimony that she remained sick for three more days.

     You can read a further discussion of the Schaar case at the Kentucky Employment Law Blog posting by Robert Abell, "FMLA Leave Entitlement May Be Established by Combination of Expert and Lay Testimony."

    If you believe that your rights under the Family Medical Leave Act (FMLA) have been violated, contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076.

  • What is a "serious health condition" that qualifies me for FMLA leave?

    A "serious health condition" that entitles an eligible employee for leave under the Family Medical Leave Act, or, as it is commonly known, the FMLA requires the following:

       (1) because of illness the employee is unable to work more than three consecutive calendar days;

       (2) the employee is treated or examined at least once by a healthcare provider related to the illness; and,

       (3) the employee is subjected to a "regimen of continuing treatment" which may include a course of prescription medication.

    The requirements for FMLA leave due to a "serious health condition" are specifically set forth at 29 C.F.R. 825.114.  An employee will have to provide medical certification or information to show or substantiate the condition; the employer may require this.

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases under the FMLA; contact him at 859-254-7076. 

  • Can taking FMLA leave be used against an employee?

    No.  An employer cannot use against an employee the taking of leave under the Family Medical Leave Act (FMLA) as a negative factor in an employment decision such as a promotion, evaluation or raise. This has been recognized by court decisions and the federal regulations.

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases under the FMLA; contact him at 859-254-7076. 

  • Can my employer use my taking of FMLA leave as a negative factor in an employment action?

    No; it is a violation of the Family Medical Leave Act (FMLA) for an employer to use an employee's taknig of FMLA leave as a negative factor against the employee. This has been recognized by both court decisions and federal regulations. See Arban v. West Publishing Corp., 345 F.3d 390 (6th Cir. 2003); 29 C.F.R. 825.220(c).

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees whose rights under the FMLA have been violated; contact him at 859-254-7076.  

  • Is my employer allowed to retaliate against me because I took FMLA leave?

    No.  The FMLA prohibits retaliation by an employer against an employee because the employee has taken FMLA leave.  29 U.S.C. 2615(a)(2); Hunter v. Valley View Local Schools, No 08-4109 (6th Cir. August 26, 2009). 

    If your rights under the FMLA have been violated or you have questions about your rights, contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076. 

  • Does the FMLA protect me against discrimination if I take FMLA leave?

    The Family Medical Leave Act (FMLA) prohibits discrimination against an employee because the employee takes FMLA leave. This is a basic point and was recognized by the court in Hunter v. Valley View Local Schools, No. 08-4109 (6th Cir., August 26, 2009).

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases under the FMLA; contact him at 859-254-7076. 

  • Can my employer use my taking of FMLA leave against me in a promotion decision?

    No.  The FMLA makes it unlawful for an employer to use an employee's taking of FMLA leave against them as a negative factor in a promotion decision. 

    If you have questions about your rights under the Family Medical Leave Act (FMLA), contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076. 

  • Can my employer use my taking of FMLA leave against me in taking a disciplinary action against me?

    No.  It is a violation of the FMLA for an employer to use an employee's taking of FMLA leave against them for purposes of taking a disciplinary action. An employer is not legally permitted to use an employee's use of FMLA leave against them.

    If your rights under the FMLA have been violated or you have questions about your rights under the FMLA, contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076. 

  • Can my employer count my days out on FMLA leave as absences under an attendance policy?

    No.  The FMLA makes it unlawful for an employer to count an employee's work days missed on FMLA leave under the employer's "no fault" attendance policy.

    The rule is basically this: "An employer may not consider an employee’s use of FMLA leave as a negative factor in an employment action." Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2006).

    If your rights under the FMLA have been violated please contact Lexington, Kentucky FMLA lawyer Robert Abell for further information at 859-254-7076.